Full text of Rand McNally Bankers Directory : January 1911 : Banking and Commercial Laws

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1368

NOTICE .

The Legislatures of a majority of the States
are now in session .

The July Edition of the

BANKERS ' DIRECTORY will contain any
changes or additions that may be made and
have at that time become laws .

THE PUBLISHERS .

March 1 , 1911 .

BANKING

AND

COMMERCIAL

LAWS

COMPILED EXPRESSLY FOR EACH EDITION THE BANKERS ' DIRECTORY

SYNOPSIS OF
THE LAWS OF ALABAMA
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 acknowledges 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
chief magistrate of any city, town or borough, or county, notaries
public, or by any diplomatic, consular, or commercial agent of the
United States . For forms of deeds see " Conveyances."
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 qualined 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
bas 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
disabilitles removed. Administration of intestate is granted, 1st :
To the husband or widow; 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 be 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 by 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 by the governor.
Aliens. "Foreigners who are , or may hereafter become, bona fide
residents of this State, shall enjoy the same rights in respect to the
possession , enjoyment , and inheritance of property as native-born citizens. " -Sec. 34, Const.
Alterations. When a negotiable instrument is materially altered
without the assent of all the parties liable thereon, it is avoided
except as against a party who has himself made, authorized, or
assented to the alteration and subsequent endorsers. But when an
instrument has been materially altered and is in the hands of a holder
in due course, not a party to the alteration, he may enforce payment
thereof according to its original tenor.
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 without consent of parties, or good cause being shown therefor. The
award of the arbitrators may be entered up and enforced as the judgment of the proper court whether made in a pending suit or not.
Arrest. There can be no arrest on civil process. except for contempt 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 benent
of all the creditors equally, but this section shall not apply to mortgages. pledges, or pawns given to secure a debt contracted contemporaneously with the execution of the mortgage. All assignments by
a debtor made with intent to hinder, delay, or defraud creditors are
vold. 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 disposition 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,

87

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 ;
claimed . Attachments
plaintiff must give bond in double the amount enforce
the collection of
will issue for the following demands : 1. To
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 ald
of a pending suit when any of the above grounds exist. Garnishment
process will issue in 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 uncontrolled 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 principal, and if any interest has been paid it must be deducted from the
principal.
Collaterals. Receipt must be given for if demanded . 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 outery.
Conditional sales are good between the parties, but void where
personal property delivered to vendee as against purchasers for a valuable consideration without notice, mortgages and judgment creditors, unless in writing and 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 miscarriage of another. 4. Every agreement, promise, or undertaking,
made upon consideration of marriage, except mutual promises
marry . 5. Every contract for the sale of lands, tenements, or hered
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
laboring 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,
able to
and who sign their names as witnesses. If the grantor is not
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 witness. 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 twentyone years of age. The husband must join in any conveyance of the
wife's separate estate. Conveyances, to operate as notice, must be
acknowledged 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 vold as to excess. A married woman must make the
following acknowledgment to a conveyance of a homestead :
State of
County of
Judge of
I.
(or other officer) do hereby certify
that, on the
., 19 ... , came before me
day of
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, constraint,
or threats on the part of her husband.
day of
In witness whereof,
I hereto set my hand this
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 by the president and secretary
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
paper must be filed. Held not to apply to corporations selling goods
by traveling agent or sample. Foreign corporations transacting business in this State without complying with above provisions, for each
offense forfeit to the State $ 1,000, and any person acting as agent for
foreign corporation that has not so complied. forfelts for each offense
$500. All foreign corporations doing business in this State are
required to pay license fees ranging from $ 25 upward, according to
capital. Foreign corporations can do no business until fees are paid

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BANKING AND COMMERCIAL LAWS- ALABAMA

and all contracts before then are void. Every foreign corporation
required to procure fro m 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 jurisdiction 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 personal 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 witnesses 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
desigsole witness of the facts; when the witness is one of the officers
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 interrogatories 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 register, 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 sisters
and their descendants, then the whole estate shall go to the surviving
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 kin
it escheats to the State. The personal estate is distributed the same
as the real estate, except that if there are no children the widow is
entitled to all of the personal estate. If but one child she takes onehalf. If not more than four children to a child's part, and 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 by a decree of the chancery court.
Divorce. The chancery court and other courts having equity
powers
have and
exclusive
jurisdiction
of the
divorce
and all
mattersTopertaining
thereto,
divorce
may be for
following
causes:
either
party for adultery, for voluntary abandonment for two years, for
Imprisonment in the penitentiary for two years, when the sentence
is for seven years or longer, for commission of the crime against nature,
and for becoming addicted to habitual drunkenness after marriage.
May be granted to the husband when the wife was pregnant at the
time of marriage without his knowledge or agency. May be granted
to the wife when the husband has committed actual violence on her
person attended with danger to life or health, or from his conduct
there is reason to apprehend such violence The plaintiff, if the
defendant be a non-resident, must have been a bona fide resident at
least twelve months, and when the ground of divorce is abandonment,
must allege and prove that he or she has been a bona fide resident 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 in 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 children 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, having pald
the purchase money, or in which he has a vested interest, 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 defendant (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 by the officer, on
lands and personality of defendant subject to levy and sale, from the
time only that the writ is received by such officer and continues as
long as writ is regularly delivered to the sheriff without the lapse of an
entire term. A statement of a judgment certified by the clerk of the
court may be filed in the office of the judge of probate, which makes
the judgment a lien within the county in which it is tiled 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
and entails 10 per cent damages,
until affirmance by supreme court, Justice's
court stay is granted on
with legal interest and costs. In
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 judgment, without bond.
Husband and Wife. The wife has full legal capacity to contract
as if she were sole, except that she can not allenate 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 cannot 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 . Usurious 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 complying with the law.
Lien for Rent. The landlords of any store house, dwelling house.
or other building, shall bave 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 llens, 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; scaled 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 payment, made on the contract before the bar is complete, or by an unconditional 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 aswell 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 vold 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 mortgaged or otherwise allened without the voluntary signature and assent
of wife, evidenced by acknowledgment, upon private examination
separate and apart from the husband, and certiñed. All mortgages
must be in writing, signed by the mortgagor. Payment of mortgage
debt made before or after maturity of debt, revests in the mortgagor,
or his assigns, the title to the real or personal property mortgaged, if
made in the lifetime of the mortgagor; if made after his death, such
payment revests title to personal property in the personal representative, and title to reality in the heirs , devises, or legatees of the mortgagor. Chattel mortgages must be in writing. When the mortgagor
is sued by the mortgagee for possession 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 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.
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 executed
as conveyances. A power of attorney to relinquish dower must be
executed by husband and wife jointly. Her signature must be

BANKING AND COMMERCIAL LAWS-ALASKA

1371

has been concealed , removed, or disposed of, so that it cannot be
attested by two witnesses, who are able to write or acknowledge as
required for conveyances of land.
found or taken by the marshal, and with intent that it should not be
found or taken, or with the intent to deprive the plaintiff of the
Presentment. Is not necessary to charge one primarily liable so
thereof. 4. When the defendant has been guilty of fraud in
except in case of bank notes ; if payable at special place ability and benent
willingness to pay it there at maturity is equivalent to a tender; if contracting a debt, or incurring the obligation for which the action is
brought, or in concealing or disposing of the property for the taking,
not on demand it must be presented on day it falls due, if on demand detention,
or conversion of which the action is brought. 5. When
then within a reasonable time after its issue, except a bill of exchange the defendant
has removed or disposed of his property, or is about to
must be presented within reasonable time after its last negotiation.
do
so,
with
intent to defraud his creditors.
Probate Law. A court of probate, consisting of one judge, is
Attachment. The plaintiff, at the time of issuing the summons
established for each county in the State. This court has jurisdiction
may have the property of defendant attached in an
of the probate of wills, of granting letters testamentary and of admin- or afterwards,
upon a contract, express or implied, for the direct payment of
istration, and the repeal or revocation of the same ; of the settlements action
and, 1 , which is not secured by mortgage, lien, or pledge upon
of accounts of executors and administrators, of the sale and disposition money,
real or personal property, or if so secured, when the security has been
of the real and personal property belonging to, and the distribution of,
intestates' estates . Also of the appointment, removal, and settlements rendered nugatory by the act of the defendant; or, 2, against a nonresident defendant. The writ issues whenever the plaintiff, or anyof guardians for minors and persons of unsound mind, the binding out
one in his behalf, files an affidavit showing that defendant is indebted
ofapprentices, the allotment of dower, and the partition of land belonging to joint owners . A court of probate must be held at the court to plaintiff (specifying the amount of indebtedness over and above all
legal set-offs or counter-claims) upon a contract, express or implied,
house of each county on the second Monday of each month, and the
the direct payment of money ; that the payment has not been
judge may hold special or adjourned terms whenever necessary, but for
secured by mortgage, lien, or pledge upon real or personal property;
such court must at all times be considered open, except on Sundays.
that the sum for which attachment is asked is an actual, bona nde,
Promissory Note. Must be unconditional promise in writing to and
debt due and owing from plaintiff to defendant; and that the
pay on demand or at fixed or determinable time a sum certain in money existing
attachment
is not sought nor the action prosecuted to hinder, delay.
to order or bearer, and where drawn to maker's own order is not comor defraud any creditor of the defendant. Plaintiff must alsofle an
plete until endorsed by him ; may be in installments.
undertaking, with one or more sureties, in a sum not less than $ 100,
Protest. (See Negotiable Instruments .)
and equal to the amount for which he demands judgment, conditioned
plaintiff will pay all costs adjudged and all damages sustained
Protest of Foreign Bills. May be made by notary public or by that
by reason of the attachment if the same be wrongful or without suffiany respectable resident of the place in presence of two or more credible
cient cause, not exceeding the amount specined .
witnesses; bill of exchange does not operate to assign funds in bands
of drawee and he is not liable unless he accepts.
Chattel Mortgages. Any interest in personal property, capable
Replevin. Writ of replevin lies to recover property in custody if of being transferred, may be mortgaged ; but the mortgage is void as
an officer of the law, and is limited to this. The action of detinue
against creditors and subsequent purchasers and incumbrancers in
lies to recover personal property in all other instances.
good faith and for value, unless possession of the property be delivered
and retained by the mortgagee or the mortgage provide that the
Taxes become delinquent on the 31st of December of the year for to
property may remain in the possession of the mortgagor and be acwhich they were levied, and the lands may be sold by certain proceedcompanied by the affidavit of all the parties thereto that the same is
ings in the probate court commenced in the month of March following.
made in good faith to secure the amount named therein, and without
The purchaser of lands sold for delinquent taxes receives from the
design to hinder, delay, or defraud creditors, and be acknowledged
collector a certificate of purchase, containing a description of the and
filed . The mortgage must be acknowledged by the mortgagor
property, the date and amount of assessment, taxes, costs, fees, etc. ,
of real property is and be filed in the office of the
which after the expiration of two years from the date of the sale is ex- as a conveyance
of the precinct where the mortgagor resides and of the prechangeable for a deed from the probate judge -which is prima facie } recorder
cinct where the property is. Within thirty days next preceding the
evidence of title. Lands sold for taxes may be redeemed within two
expiration of one year from the filing, a true copy of the mortgage,
years by the owner, mortgagee, or any person having a beneficial inter- with
a verified statement of the interest of the mortgagee in the propest therein by depositing with the probate judge of the county in which
erty at the time the same is renewed, must be filed in the office where
the lands were sold , the amount of purchase money, with interest at the
original was filed, and the lien is thereby extended another year.
15 per cent per annum, and all taxes which have accrued subsequent
Chattel mortgages are foreclosed in the same manner as mortgages
to the sale, and interest thereon, at 8 per cent per annum ; also all costs
and liens upon real property, but a clause may be inserted in a mortgage
and charges. Whenever land is sold for State or county taxes, and
authorizing the marshal to execute the power of sale therein granted
from any cause such sale is invalid to pass title to purchaser, sale
to the mortgagee.
operates as transfer to purchaser of lien of state or county, or the
property for payment of taxes for which sold. All cotton factories
Corporations. Domestic Corporations. Three or more adult peror cotton mills which shall be constructed in this State within five years
sons, bona fide residents of the district, may form a corporation for
the following purposes: To construct, own, and operate railroads,
shall be exempt from taxation for a period of ten years, provided such
mills represent an investment of $ 50,000.
tramways, street railways, wagon roads, flumes, and telegraph and
telephone lines in Alaska; to acquire, hold, and operate mines in
Wills. All wills of real or personal property must be in writing
Alaska; to carry on the fishing industry in Alaska and the waters
signed by the testator in presence of two witnesses. Unwritten will
adjacent and contiguous thereto ; to construct and operate smelters.
of personal property valid only when the property does not exceed
electric and other power and lighting plants, docks, wharves, elevators ,
$500 in value, and must be made during last sickness by testator at
warehouses, and hotels in Alaska; and to carry on trade, transportahis home. Persons present must be called on to witness that it is
tion, agriculture, lumbering, and manufacturing in Alaska.
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
Foreign Corporations. Every corporation or joint stock company
organized under the laws of the United States or any state or territory
property . No will effective until probated . May be contested in
probate or chancery court.
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
copy of its charter or articles of incorporation, and also
authenticated
SYNOPSIS OF
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,
THE LAWS OF ALASKA
may be made by deed, signed and sealed by the person from whom
estate or interest is intended to pass, and acknowledged or proved,
the
RELATING TO
and recorded, without any other act or ceremony . A quit-claim deed
all the estate which the grantor could convey by deed of bargain
passes
BANKING AND COMMERCIAL USAGES
and sale. No covenants are implied in any conveyance. The term
"heirs." or other words of inheritance, are not necessary to create or
Prepared and Revised by F. E. FULLER, NOME.
convey an estate in fee simple. Husband and wife may, by their
(See Card in Attorneys' List.)
joint deed, convey the real estate of the wife, in like manner as she
inight do by her separate deed If she were unmarried . A married
Acknowledgments. (See Deeds .)
woman residing in the district, joining her husband in a deed, must .
Actions. The distinction between actions at law and suits in acknowledge that she executed such deed freely and voluntarily.
equity and all forms of pleading heretofore existing in actions at law When a married woman not residing in the district joins her husband
and suits in equity are abolished, and there is but one form of action,
in conveying real estate situate in the district, the conveyance has the
denominated a civil action, for the enforcement or protection of pri- same effect as if she were sole, and the acknowledgment or proof of the
. Within the
vate rights and the redress or prevention of private wrongs. Every execution may be made the same as if she were solewitnesses,
who
action must be prosecuted in the name of the real party in interest, district deeds must be executed in the presence of two
except that an administrator or executor, a trustee of an express trust. shall subscribe their names as such; and the person executing a deed
district
joining
of
the
clerk
sue
without
or a person expressly authorized by statute may
may acknowledge the execution before a judge,
with him the person for whose benefit the action is prosecuted ; but court, notary public, or commissioner within the district, and the
the assignment of a thing in action not arising out of contract is not officer taking the acknowledgment must indorse thereon a certificate
authorized .
of
acknowledgment and the true date of making the same under his
hand.
Affidavits. An affidavit or deposition taken out of Alaska, otherwise than upon commission, must be authenticated as follows : 1.
Depositions.
The testimony of a witness, in the district, may
It must be certified by a commissioner appointed by the governor of be taken by deposition,
in an action, at any time after the service of
Alaska to take affidavits and depositions in the state, territory, district the
summons
or
the
appearance of the defendant, and in a special
or country where taken ; or, 2, it must be certified by a judge of a
after a question of fact has arisen, when. 1 , the witness is
court of record having a clerk and a seal to have been taken and sub- proceeding
a party to the action or proceeding, by the opposite party; 2, the
scribed before him at a time and place therein specified , and the witness's
residence is more than one hundred miles from the place of
existence of the court, the fact that such judge is a member thereof, trial: 3, the
is about to go more than one hundred miles beyond
and the genuineness of his signature must be certified by the clerk the place ofwitness
trial ; 4 , the witness is too infirm to attend the trial ; or, 5 ,
of the court, under the seal thereof. In all affidavits or depositions the testimony
is required upon a motion, or in any other case where
witness should speak in the first person.
examination
the oral
of the witness is not required.
Aliens. Any allen who is a bona fide resident of the United States,
The testimony of a witness, out of the district, may be taken by
or who has declared his intention to become a citizen, or whose rights
deposition, by commission issued, upon five days ' notice to the other
are secured by treaty, may acquire and hold lands upon the same terms party, by the clerk of the court, or justice of the peace in a cause in his
as a citizen. Any allen may acquire lands by inheritance or in the own court, to a person agreed upon by the partles, or, if they do not
ordinary course of justice in the collection of debts, and may acquire agree, to a judge, justice of the peace, notary public, or clerk of a
and enforce llens upon lands, but such lands
be sold within ten court selected by the officer issuing the commission.
years. Any allen may also acquire and holdmust
The amount of the commissioner's fees should be indorsed upon the
lots or parcels of land
in any Incorporated or platted city, town, or village, or in any mine deposition.
or mining claim, but is not authorized to acquire title from the United
Descent and Distribution. The real property of an intestate
States to any of the public lands.
descends as follows: 1. In equal shares to his or her children and
Arrest.
The
defendant
may
be
arrested
in
the
following
civil
to the issue of any deceased child by right of representation; and
actions: 1. For the recovery of money or damages when the de- If
there be no child of intestate living at the time of his or her death,
fendant is about to remove from the district with intent to defraud to all his or her other lineal descendants; and if all such descendants
his creditors ; for an injury to person; or for willfully injuring or wrong- are in the same degree of kindred to the intestate, they take equally;
fully taking, detaining, or converting property. 2. For a fine or otherwise, by representation . 2. If intestate leave no lineal descendpenalty; or for money or property embezzled or fraudulently mis- ants, to his wife; or if intestate be a married woman, to her husband;
applied or converted to his own use by a public officer, or by an attor- and if intestate leave no wife nor husband, to his or her father. 3.
ney, or by an officer or agent of a corporation in the course of his If intestate leave no lineal descendants, neither husband nor wife,
employment as such, or by any agent, broker, or other person in a nor father, such real property descends in equal shares to his brothers
fiduciary capacity or for misconduct or neglect in office or in a profes- and sisters, and to the issue of any deceased brother or sister by
sional employment. 3. To recover the possession of personal right of representation ; but if intestate leave a mother, she takes
property unjustly detained , when the property or any part thereof an equal share with such brothers and sisters . 4. If intestate leave no

1372

BANKING AND COMMERCIAL LAWS- ALASKA

lineal descendants, neither husband nor wife, nor father, brother,
nor sister, such real property descends to his mother, to the exclusion
of the issue of deceased brothers and sisters . 5. If intestate leave
no lineal descendants, neither husband nor wife, nor father, mother,
brother, nor sister, such real property descends to his next of kin
in equal degree, excepting 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 more children, and the issue of one or more
deceased children , and any of such surviving children die under
age without having been married, all such real property that came
to such deceased child by inheritance from such intestate descends
in equal shares to the other children of such intestate and to the issue
of any other children who have died , by right of representation . But
if all the other children of intestate be dead, and any of them have
left issue, such real property so inherited by such deceased child
descends to all the issue of such other children of the intestate in
equal shares, If they are in the same degree of kindred to such deceased
child; otherwise, they take by right of 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 account of consanguinity of parties, or on account of either having a former husband
or wife then living, Is, if solemnized within the district, absolutely
void, and for any of such causes may be declared void from the beginning, 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 causes: 1.
Impotency existing at the time of the Adultery.
marriage and continuing to
the commencement of the action. 2.
3. Conviction of
felony . 4. Willful desertion for the period of two years. 5. Cruel
and Inhuman treatment calculated to impair health or endanger life.
6. Habitual gross drunkenness contracted since marriage and continuing for one year prior to the commencement of the action. Plaintiff must be an inhabitant of the district at the commencement of the
action and for two years prior thereto . Neither party may marry a
third person until the action is determined upon appeal or the timé
for taking an appeal has expired.
Dower and Curtesy. The widow of every deceased person is
entitled to dower, or the use during her natural life of one-third part !
in value of all the lands whereof her husband died scized of an estate
of inheritance.
When any man and his wife are seized in her right of any estate of
Inheritance in lands, the husband, on the death of his wife, holds the
lands for his life as tenant thereof by the curtesy, although such
husband and wife may not have had issue born alive.
Evidence. No person may be excluded as a witness on account of
being a party or interested in the event of an action or proceedings,
having been convicted of a crime, or his opinions on matters of religious
belief. Persons of unsound mind and children under ten years of age
who appear incapable of receiving just impressions of the fact respecting which they are examined or of relating them truly may not be
witnesses. An attorney may not. without his client's consent, be
examined as to communications made by his client to him or his advice
thereon. A priest may not, without the consent of the person making
the confession, be examined as to any confession made to him in his
professional capacity, in the course of discipline enjoined by the church
to which he belongs. A physician or surgeon may not, against the
objection of his patient, be examined, in a civil action, or proceeding.
as to information acquired in attending the patient which was necessary to enable him to prescribe or act.
Executions. (See Judgment and Execution .)
Executors and Administrators . When a will is proven letters
testamentary are issued to the persons therein named as executors,
or to such of them as give notice of their acceptance of the trust and
are qualified . Administration is granted as follows : 1. To the
widow or next of kin, or both, In the discretion of the court : 2, to one
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 qualined, 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 execution
⚫ 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 $75. 3. Necessary
wearing apparel owned by any person for the use of himself or family,
but watches or jewelry exceeding $ 100 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 carns his living,
to the value of $ 500 ; 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 $ 300 ; also
food sumclent 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.
Garnishment. (See Attachment. )
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 $ 2,500 In value
nor exceed 160 acres in extent, if not located in a town or city lald
off into blocks or lots : orif located in any such town or city, one-fourth
of an acre. This exemption does not apply to decrees for the foreclosure of any mortgage properly executed; but if the owners of such
homestead be married, the mortgage must be executed by husband
and wife.
Interest. The legal rate of interest is 8 per cent, but on contracts
Interest at the rate of 12 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 .
Ifit 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 8 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 immediately 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 docketing 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
judgment 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
commissioner'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 furnished at the instance of the owner of the building or other improvement 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
following 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 implied , 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 property, 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,
seduction, 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 marshal or other officer for the escape of a person arrested
or imprisoned 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 married woman
alone, and her husband is not responsible therefor. Contracts may
be made by a wife, and liabilities incurred, and the same enforced
by or against her to the same extent and in the same manner as if
she were unmarried . All laws which impose or recognize civil disabilities upon a wife which do not exist as to the husband are repealed.
Wife may record list of her property and such list is prima facie
evidence of her separate ownership, and property not so regIstered is deemed pima 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 married 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, or personal representatives. 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 vold
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
boundaries of which are fixed by the court. Conveyances of lands
not in any recording district are recorded with the clerk of that division of the district court within the limits of which such lands are
situated.
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, 4 cents per case: salmon salteries, 10 cents per barrel;
fish oll works, 10 cents per barrel: fertilizer works , 20 cents per ton;
freight and passenger tranportations lines, propelled by mechanical

BANKING AND COMMERCIAL LAWS -ARIZONA

1373

power on inland waters and ocean and coastwise vessels doing local
Banks Savings and Loan. May be incorporated to loan and
business for hire, $1 per ton on net tonnage : railroads , $ 100 per invest property . May hold lot and building in which business is
mile: tramways. $10 per mile ; saw- mills , 10 cents per thousand feet
carried on to value of $ 100,000 ; such as may accumulate on good
on lumber sawed ; quartz mills , $3 per stamp : mercantile establishfaith loans and such personal property as may be required in transacting its business. To purchase and convey evidence of debt except
ments and manufactories doing a business of under $4,000 per annum ,
$10, and in proportion to the amount of business done to $500 for national, territorial, and municipal bonds must have a capital of
establishments doing a business of $ 100,000 per annum; in other lines $ 100,000 . Married women and minors may transact business with
of trade and business the amount is fixed for each and ranges from
such
Are required to have license and are examined by the
bank banks.
examiner.
Provisions are made for the contents of the charter.
$10 to $500.
Wills . Every person of twenty-one years of age, of sound mind, I Bills and Notes. The negotiable instrument code adopted by the
American
Bar
Association
is in force. Joint obligor may be released
may dispose of all his or her property by will, saving a widow's dower without releasing
others. (See Holdings.)
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,
Bonds. Any standard surety company, organized under laws of
and attested by two or more competent witnesses subscribing their United States or of any state, may execute bonds in judicial
proceednames in the presence of the testator. A will by an unmarried person
within the territory when they have complied with license laws.
is revoked by his subsequent marriage . Children or descendants ings
(See Guaranty Companies )
of children not named or provided for in the will take as if testator
Chattel Mortgage. To be valid against others than the parties
had died intestate. A mariner at sea or soldier in military service
thereto, chattel mortgage must set out the residence of the mortuagor
may dispose of his personal property as at common law. Proof
and the mortgagee, the rate of interest to be paid and time and place of
of nuncupative will must be made within six months, and the words
payment of the debt secured , and be accompanied by the affidavit of
or their substance reduced to writing within thirty days after they
both mortgagor and mortgagee that the mortgage is bona fide and
are spoken. A person owning property In, but not an inhabitant
made without design to defraud or delay creditors. Immediate
of, the district may devise or bequeath the same according to the
delivery of the mortgaged property must be made to the mortgagee
laws of his domicile . If such will be probated without the district,
and the change of possession must be actual and continued, unless the
copies of the will and the probate thereof, certified by the clerk of
mortgage or a true copy thereof shall be forthwith deposited and filed
the court in which it was probated, with the seal of the court affixed
in the office of the recorder of the county where the property shall
thereto, if there be a seal, together with a certificate of the chief
then be situated . Removal, sale, or other disposition of mortgaged
judge or presiding magistrate, that the certificate is in due form,
property without consent of mortgagee entitles mortgagee to immeand made by the clerk or other person having the legal custody
diate possession of it, and such removal, transfer, or sale, or subsequent
of the record, may be recorded, admitted in evidence, or contested
encumbrance is felony If mortgagee permits mortgaged property to
and annulled as if executed and proved within the district,
be removed to another county, he shall within one month record his
mortgage in such other county. Chattel mortgage may be foreclosed in justice court if amount of debt does not exceed $ 300 ; other
wise in district court. Mortgagee may obtain possession of property
SYNOPSIS OF
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
THE LAWS OF ARIZONA
acknowledged, and copy certified to by county recorder.
Claim and Delivery. (See Replevin .)
RELATING TO
Collaterals. No statutory provisions -common law prevails.
Community Property. (See Conveyances . )
BANKING AND COMMERCIAL USAGES
Conditional Sales. Where title remains in vendor until purchase
price is paid, vold as to persons not parties thereto, and persons
without
notice, unless subscribed, acknowledged, and filed with
Prepared and Revised by E. S. CLARK, Attorney at Law , Prescott .
county recorder.
Contracts. (See Bills and Notes .) One or more obligors on a
joint or joint and several instrument may be released without releasing
Accounts. When stated draw interest; when action is upon
others, and may be sued separately under certain conditions with
or attorney is the
Itemized account and affidavit of party, his agent
out releasing the others. Married women may contract as if sole.
attached, stating that such " account is, within afflant's knowledge,
Conveyances. Conveyances of estate in lands for term more than
just and true, that it is due, and that all just and lawful offsets ,
claimants, and credits have been allowed, " is prima facie evidence ,
one year shall be by instrument in writing subscribed by party making
unless one day before trial, defendant files written denial of any item
it, or his agent, duly authorized thereto by writing. A conveyance is
under oath.
not effectual against creditors or bona fide purchasers unless recorded
in recorder's office in county where land is situate. A conveyance
Acknowledgments. Married women, men, and attorneys, in fact,
purporting to convey a greater estate than the grantor has passes only
use this form : "On
this day, before me,
a notary public
the estate that he actually has. A general grant or devise passes the
In and for said county and state, personally appeared
fee unless expressly limited to a less estate. All deeds must be signed
known to me to be the person who subscribed to the foregoing instruby both husband and wife except as to unpatented mining claims.
ment and acknowledged to me that the instrument was executed
Deeds must be signed and must be acknowledged before some officer
for the purpose and consideration therein expressed ." If executed
to take acknowledgment, and properly certified by him
by the officers of a corporation for the corporation, it should con- authorized
to entitle same to registration. The use of the word "grant" or
clude with the words : " As the free act and deed of said corporation
"convey" implies the following covenants and none other: 1. That
by each of them voluntarily executed." Certificate must show date
previous to the time of the execution of the conveyance the grantor
of expiration of officer's commission. Instruments relating to prophas not conveyed the same estate, or any right, title or interest therein,
erty rights must be acknowledged before recording.
to any person other than the grantee. 2. That such estate is at the
Actions. Distinction in forms between law and equity are aboltime of the execution of such conveyance free from incumbrances.
and answer, and in some cases a
ished.
Married women seventeen years of age and upward may convey their
reply. Pleadings are : Complaint
own lands without being joined by their husbands. (See AcknowlAdministratio
Estates.
edgment, Dower, Husband and Wife, Homestead )
public
of
n
No
Lie
in
Probate
Court.
administrator. Where person dies intestate letters shall issue.
become
Corporations in General. Two or more persons may
Affidavits. May be taken from any officer authorized to take Incorporated
for the transaction of any lawful business. Before comacknowledgments , including judges, masters in chancery, and others.
not be residents
need
who
persons,
or
more
two
business,
any
mencing
Aliens. Unless rights are secured by treaty cannot hold land In
of the territory, must adopt articles of incorporation which shall be
signed and acknowledged by them, and be recorded in the office of the
the territory, unless acquired prior to March 3, 1887; may acquire
by inheritance , or in ordinary course of justice in the collection of county recorder of the county where the principal place of business is
debts; may acquire liens on real estate, may lend money and secure to be and a certified copy in the office of the territorial auditor. The
same on real estate, but title so acquired must be sold within ten articles of incorporation must contain: 1. The name of corporators,
general
years; may acquire patented mines and hold stock in domestic cor- and its principal place of transacting business . 2. The
nature of the business proposed to be transacted . 3. The amount of
owning
poration
cities or towns
. unpatented mines; may hold lots in incorporated
the times when and conditions upon
capital stock authorized and
which it is to be paid in. 4 . The time of the commencement and
Appeals. Appeals are allowed from justice of peace, probate
termination of the corporation. 5. By what officers , or persons the
court, to district court in certain cases and from district court to
affairs of the corporation are to be conducted, and the times at which
supreme court where amount involved is $ 100 or over.
are to be elected . 6. The highest amount of indebtedness or
they
Arbitration. There are statutory provisions which are not
liability to which the corporation is at any time to subject itself, which
exclusive of the common law arbitration.
private
must not exceed two-thirds of its capital stock. 7. Whether
property is to be exempt from corporate debts. Unless so exempted
Arrest. Abolished in civil cases, debtor fraudulently removing
property out of territory or concealing it may be prosecuted criminally.
stockholders are liable for the debts of the corporation in the proportion which their stock bears to the whole capital stock. Must
Attachment. Writ will issue on affidavit showing: 1 . That
be published for six days in some newspaper in the county where
defendant is indebted to plaintiff upon a contract, express or implied ,
principal business is located . Proof of publication must be filed
the
for the direct payment of money and that such contract was made or
with the auditor. Corporations to endure for twenty-five years.
Is payable in this Territory, and that the payment of the same has not
must file in office of territorial auditor an appointment
Corporation
been fully secured by mortgage, lien, or pledge of personal property,
of agent who is a bona fide resident of this territory for three years
or if originally so secured , that such security has, without any act of
on whom all notices and process, including summons,
thereto,
prior
plaintiff or the person to whom the security was given, become valuemay be served and constitutes personal service. Charges for incorless, and shall specify the character of the indebtedness, that the same
poration : Recorder's fees , 20 cents follo. Recorder's fees, certified
is due to the plaintiff over and above all legal set-offs or counter-claims,
copy, 20 cents follo. Recorder's fees certificate to copy, 75 cents .
and that demand has been made for the payment of amount due ; or,
Territorial auditor's fees, filing cost copy, $ 10 . Printers ' fees per inch,
2. That defendant is indebted to plaintiff, stating amount and charpublishing articles six days, 80 cents. Territorial auditor's fees, filing
acter of debt; that same is due and payable over and above all legal
publishing $3.00. Territorial auditor's fees, filing appointment
proof,
set-offs and counter-claims, and that defendant is a non-resident of
of agent, $3.00. Where charter provides assessments may be levied on
this
or is a foreign corporation doing business in this Territo par value ( 1907) .
shares
tory ;Territory
or, 3. That
an action is pending between the parties, and that
Corporations, Foreign. Before it can transact business it must
defendant is about to remove his property beyond the jurisdiction of
certified copy of Articles with territorial auditor and county
the court to avoid payment of judgment; and, 4. That the attach- Ale
in county of principal place of business , also an appointment of
ment is not sought for a wrongful or malicious purpose, and that the recorder
agent upon whom a service personal to the corporation may be made
action
not prosecuted to hinder or delay any creditor of defendant.
5. Noissuch
Corporations,
Insurance. May be organized under provision
attachment shall issue until sult has been duly instituted ,
but it may be issued in a proper case either at the commencement of peculiarly applicable to insurance companies.
the suit or at any time during its progress. 6. The writ may issue.
Corporations, Railroad. Are organized under a statute espealthough plaintiff's debt or demand be not due under specified facts of cially providing for them.
intent
to defraud;
no final
judgment
shallIssue
be rendered
until
suchbegan
debt
Corporations, Savings and Loan. (See Banks and Banking .)
or demand
shall become
due.
Writ may
at or after
action
Corporation Stock, Transfer of. Transfer of stock shall not be
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. valid, except as between the parties thereto , until the same is regularly
Suretles can be compelled to justify upon notice. When more than entered upon the books of the company, so as to show the names of the
attachment
person by whom and to whom the transfer is made; the number of their
one to
Is levied
same Garnishment.)
property writs take priority accordtime of levy.
ing
(SeeonLiens,
designation of the shares, and the date of the transfer.
Banks and Banking. Banks of discount and deposit (but not
Costs. Plaintiffs who are non-residents , or those who own no
incorp
relati
corpor
statut
of
may
issue)
under
to
the
orate
ng
ations
e
property upon which execution may be levied, are required to give
In general, which title see. Banking business may be carried on by security
for, within ten days after order made ; bonds for, must
individuals or firms, or by corporations organized for that purpose.
authorize judgment to be entered against sureties.

1374

BANKING AND COMMERCIAL LAWS - ARIZONA

Courts. Are the Supreme Court of the Territory, the U S. district
courts of the five judicial districts, the district court for each County,
of
the probate court for each County, justices of the peace, recorders
cities . The district court of the several counties is a court of general
Jurisdiction, both civil and criminal. It has both original and appellate jurisdiction . Its original jurisdiction extends to all civil cases
where the amount involved exceeds $ 100 exclusive of interest, and in
all cases involving the title to or possession of real estate . Justice
courts have general jurisdiction when amount in controversy does
not exceed $300, except when title to real estate is involved . (See
Jurisdiction.)
Creditors' Bills. No statutory provisions.
Days of Grace. None.
Depositions. Depositions may be taken on commission or by
stipulation before any officer authorized to take acknowledgments of
deeds. The officer shall certify that the answers of the witness were
signed and sworn to before him, and shall seal them up in an envelope,
together with the commission and interrogatories and cross-interrogatories, if any, and shall write his name across the seal and indorse on
the envelope the names of the parties to the suit, and of the witnesses,
and shall direct the package to the clerk of the court or justice of the
peace, as the case may be. Depositions may be returned to the court
either by mail or by hand. I sent by mail, the postmaster or his
deputy shall indorse thereon that he received them from the hands of
the officer before whom they were taken. The deposition of a party
to action may be taken and his statements may be controverted .
Descent and Distribution . (See Savings Banks.) The law of
community property prevails. The separate estate of an intestate,
when he or she shall die leaving surviving
no husband or wife, shall
descend as provided. When an intestate leaves surviving a wife or
husband another method is provided. Children of the intestate
brothers, sisters, uncles and aunts, take per capita. All property
belonging to the community estate of the 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 surviving 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
from 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
incompetency at marriage and continued to institution of sult; 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 testimony 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 husband.
Habitual intemperance : Allmony and counsel fees may be allowed
pendente lite; corroborating evidence must be produced. Division
of community property may be allowed.
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
be 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 supplemental 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 sult 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
designating such homestead in the office of the county recorder of the
county in 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 consideration 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 Every
performed
the space
one year after
the making
conveyance,
thereof.
gift, within
or ofassignment,
or transfer,
or
charge upon any estate, real or personal; any suit commenced on
decree, judgment, or executions suffered or obtained , or any bond
or other writing given with intent to delay, hinder, or defraud creditors, purchasers or other persons, shall to such persons be void. All
bargains, sales, and other conveyances of lands, tenements, and hereditaments , 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 valuable in law shall be vold 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,
vold 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 remained
with the donor or some one claiming under him. Fraudulent intent
Is a question of fact and not oflaw. Conveyance shall not be adjudged
fraudulent merely because not for valuable consideration. If any
person shall do or transact business as a merchant or trader, with the
addition of the words agent, factor, company, or & Co. , or words of
like significance or import, and shall fall 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 afflant'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 judgment, when afflant 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, conditloned 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 , Thanksgiving, May 30, December 25, Arbor day, every
Sunday and general 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 other negotiable instrument, made payable
at any future period , which falls due on any of these days mentioned,
shall be considered due and collectible on the day following , and if
January 1 , February 12, February 22, July 4, December 25, or May 30
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 .
Homestead. Deed to, must be 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 marriage, 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
marriage, 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 from her husband , shall be deemed the common
property of the husband and wife, and during the coverture may be
disposed of by the husband only. Married women of the age of
twenty-one years and upwards shall have the same legal rights as men
of the age of twenty-one years and upwards, except the rights of suffrage and of holding office, and except the right to make contracts
binding the common 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, pending litigatlon, 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 territorial 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 llen upon all
real estate of judgment debtor in the county as soon as entered and
docketed . Upon filing with the clerk of the district court a transcript
of judgment from justice court or of district court of another county.
the same becomes a lien on all real estate of judgment debtor in the
county. No execution can be issued on any judgment after the
expiration of five years from the date of its rendition and entry, unless
such judgment be revived by scire facias or action for debt be brought
thereon within such five years.
Judicial Bonds . (See Bonds .)
Levy. (See Executions .)
Licenses. For gambling prohibited.
Liens. All persons who may labor or furnish materials in the construction or repairing of any building, superstructure, canals, dams,
mines, or other improvement, or cuts cordwood, shall have a llen on
the same, and in case of buildings and superstructures, on the lot of
land whereon 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 are
preferred to all subsequent liens, mortgages, and incumbrances, and
such as lien claimant had no notice. Suit to foreclose such liens must
be commenced within six months after filing the same in the recorder's
office . In case 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,
officer executing writ. Proprietors of hotels, boarding houses, and
and
lodging houses have special lien on all property or baggage deposited
with them by guests for price of guests' entertainment. Agister and
liveryman 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 possession where person pays taxes and has deed recorded , five years, otherwise ten years; to recover lots in city or village against person having
recorded
pays taxes,only,
five years;
where Personal
party in possession
claims bydeed,
rightand
of possession
two years.
ActionsOne year: Personal injuries , malicious prosecution, false Imprisonment, libel, slander, seduction, breach of promise. Two years :
Trespass to property, detention or conversion of personal property
to own use, taking and carrying away goods and chattels ; and injuries
to person where death ensues, to accrue from date of death. Three
years: Actions for debt not in writing; on stated or open accounts
other than mutual between merchants or their factors and agents;
all accounts, except as between merchants and factors and agents,
limitations run from date of each item of delivery. Four years: For
penalties or damages on any bond to convey real estate; between
partners for settlement of partnership accounts; on mutual or current

BANKING AND COMMERCIAL LAWS -ARKANSAS

1375

accounts between merchants, their factors or agents , to accrue from
SYNOPSIS OF
cessation of dealings : upon judgment or Instrument without the Territory; debt evidenced by writing within the Territory; bonds of
THE LAWS OF ARKANSAS
executors, administrators, or guardian, after death, removal, etc.;
specific performance; to contest will after discovery of fraud; and
RELATING TO
where no provision is otherwise made. Five years: On domestic
judgment where execution has been issued within one year after
BANKING AND COMMERCIAL USAGES.
rendition.
Mines unpatented are real estate for the purpose of Inheritance and
Prepared and Revised by B. S. & J. V. JOHNSON, Little Rock.
conveyance. Location requires seven monuments, three at each end,
and one at discovery, in which notice is to be placed on discovery;
(See Card in Attorneys' List.)
title work consisting of a shaft 4 x 6 x 10 feet deep, or its equivalent
in an open cut so that mineral in place is discovered 10 feet from the
Accounts verified by the plaintiff as just and correct prove themsurface must be done and notice recorded within three months, and
selves in suits thereon unless denied under oath.
annual assessment work amounting to $100, maintained each year
Acknowledgments may be taken within the State before the
thereafter, until patent is ordered .
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
Minors. (See Savings Banks .)
United States before any court having a seal, or clerk of such court,
Mortgages. Mortgage may contain power of sale. Whether it
notary public, mayor having a seal, or commissioner of Arkansas .
does or not, mortgage may be foreclosed by sult in district court.
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
Failure of mortgagee to lawfully release a satisfied mortgage for seven
days after demand for the release, subjects him to liability for $ 100 the laws of such country to probate conveyances of real estate, proand actual damages. Mortgages on real estate are executed , ac- Ivided he has a seal.
knowledged , and recorded as conveyances of real estate. (See ConActions. Sults are prosecuted under a reformed code of civil proveyances, Chattel Mortgage, Acknowledgments , Redemption.)
cedure differing from the New York code chiefly in maintaining the
Notary Public . In all certificates and acknowledgments the date distinction between law and equity.
Administration of Estates. Executors and administrators must
of expiration of commission must be stated, as " commission expires'
the value of the
No certificate of holding office, etc., is required when notary acts in be residents of the State and must give bond in double
property . Foreign executors and administrators can maintain actions
foreign state or country.
in our courts. Claims are paid in the following order: First, funeral
Notes and Bills of Exchange. (See Bills and Notes.)
expenses; second, expenses of last illness; third, judgments which are
presented within
of the deceased ; fourth, demands
Partnerships using fictitious name may file certificate showing lens on the lands demands
presented within one year. All demands
names of partners with county recorders. Foreign partnerships may six months; fifth,
not presented in one year are barred . Demands must be authenticated
do so.
by an affidavit to the effect that nothing has been paid or delivered
Powers of Attorney. No special statutory provisions relative to.
thereon, and that
toward their satisfaction except what is credited
To confess judgment must be executed subsequent to maturity of debt the
sum demanded, naming it, is justly due. Demands must first be
confessed , and must be acknowledged. To convey lands or release
presented to the executor or administrator, and if disallowed by him
mortgages should be acknowledged as deeds, and recorded .
may be presented to the probate court, or sued upon in any court of
Probate Law. (See Savings Banks and Administration of Estates .)
competent jurisdiction. Notes and debts secured by mortgages or
of trust must be probated as any other claim, and if not predeeds
Protest. Liability of drawer or indorser of bill or note maybe sented to the executor or administrator within one year after apfixed by regular protest and notice, etc., according to the usages and
are barred by the statute of non-claim of one year.
pointment,
custom of merchants. (See Bills and Notes .)
barring of the
When the note or debt is barred this carries with it adebts
."
mortgage or deed of trust given to secure the notes or
Records. The district and probate courts of each county are
Affidavits in this State are made before a judge, justice of the peace,
courts of record . The recorder's office in each county relates to titles
of real estate and personal property, and probably record instrument notary public, or clerk of the court; without the State before a judge.
therein is notice. The minutes of the Sanitary Live Stock Board are mayor, notary public, justice of the peace or commissioner for this
State.
notice of all brands and marks of live stock.
Aliens may hold and transmit property in all respects as residents .
Redemptions. From sheriff or judicial sales, six months, by
Arbitration. Controversies may be submitted to arbitration , and
debtors or successors in interest ; any lien holder may redeem within
the
award of the arbitrators is filed in court, and is subject to review
three months
filing
statutory
by on equitable
principles only, and not for matters of form. When not
serving
notice inthereafter
five days by
afterserving
end of and
said six
months.
Thenotice,
same rule
applies to foreclosure of mortgages and trust deeds whether by court set aside they are entered of record and become the judgment or decree
of the court.
or under powers of sale.
Arrest. Defendants may be arrested for debt only when the
Replevin. For possession of specific personal property which has
plaintiff files an affidavit charging that the debt was fraudulently connot been seized under any process , exécution or attachment against
tracted
; that it is just, giving its amount, and that he believes that the
the property of the plaintiff.
defendant is about to depart from the State, and , with intent to defraud his creditors, has concealed or removed from the State his
Sales. The "uniform sales law" is in force.
property or so much thereof that the process of the court after judgSeals. Addition or omission of seals or scrolls to instruments of ment can not be executed ; or that the defendant has money or securiwriting in no way affect the force and validity of the instrument.
ties in the possession of himself or of others for his use, and is about
Instruments executed by corporations must have a corporate seal to depart from the State not leaving sufficient property therein to
attached.
satisfy the plaintiff's claim. Bond must be given conditioned to pay
Service. All summons upon persons shall be personal, or by leaving the defendant all damages that he may sustain is wrongfully arrested.
Assignments for the Benefit of Creditors may be general or
a copy with copy of complaint at the usual place, of residence of
defendant, with a member of his family over the age of sixteen years ; partial, with or without preferences, and where all the debtor's propagainst incorporated city, or town, or village; upon major, clerk, erty is conveyed , may exact releases as a condition of preference . The
secretary, or treasure; against incorporation or joint stock assocla- assignee must file an inventory of the property assigned and give a
tion, upon president, secretary, or treasurer, director or local agent bond conditioned that he will execute the trust confided to him, sell
the best advantage and pay the proceeds to the credirepresenting company, or by leaving a copy of summons and com- the property to in
tors mentioned the assignment according to its terms, and faithfully
plaint at the principal office during office hours; upon any railroad ,
telegraph, or express company, or any agent of such company who 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,
resides in or may be found in the county where suit is brought; upon
domestic corporation by serving on statutory resident agent, and where 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
there is no officer upon whom service can be made in the Territory,
service may be had by delivering duplicate copies of summons and
varying from the requirements of the statute. Attacks upon them
complaint to the secretary of the Territory, and upon foreign corporare made by proceedings in equity, and, if they are set aside, the
proceeds are distributed equally among all the creditors. Assignees
ation by delivery to statutory agent.
close up their accounts under the direction of the chancery courts.
Suits. (See Actions.)
can not prefer creditors.
Taxes . Aside from those levied by legislative enactment for Corporations
Attachments may be sued out where the defendant is a foreign
specific purposes, as for the construction and maintenance of public corporation or non-resident, or has been absent from the State four
institutions, etc., Territorial taxes are levied by the Territorial Board
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,
of Equalization; county taxes by the boards of superv
of the or
conceals himself so that summons can not be served on him, or is
several countles, and city taxes by the common councils ofisors
the various
cities. Railroads are valued for the purpose of taxation by the Terri- about to remove or has removed a material part of his property out
torial Board of Equalization. Other property is valued by county
of
the
State, not leaving enough to satisfy his creditors, or has sold,
assessors. The assessing of value begins in February of each year.
conveyed or otherwise disposed of his property, or suffered it to be
Taxes are levied on the third Monday of August in each year. The sold with the fraudulent intent to cheat, hinder, or delay his creditors,
llen attaches on the first Monday of February in each year. Taxes or is about so to do. It is obtained by filing an affidavit stating the
become due not later than the third Monday in September, and nature of the plaintiff's claim, that it is just. Its amount and the existence of the ground, and by giving bond conditioned to pay all damages
become delinquent if not paid on the third Monday of December.
The penalty for delinquency is 5 per cent. Within 60 days after the defendant may sustain if the attachment is wrongfully sued out.
delinquency action may be comme
nced in district court to foreclose The defendant is allowed to traverse the attachment, and the affidavit
delinquent real estate tax liens, and property sold as under execution. and traverse then stand as pleadings upon which the issue is tried.
Personal
property tax is collected by distress warrant. Taxes after If the attachment is dissolved , the defendant may have an assessment
delinquency draw interest at one per cent per month after action of damages upon the bond in the same suit. Persons claiming the
commenced to foreclose tax llen penalty of twenty- five per cent is attached property may interplead in the same action. Attachments
added. There is doubt about the right to redeem from tax sales.
may be sued out before the debt is due where the defendant has sold,
conveyed, or otherwise disposed of his property, or permitted it to be
Warehouses. Personal property in, may be sold for unpaid sold
with the fraudulent intent to cheat, hinder or delay his creditors,
charges.
or is so to do, or is about to remove his property, or a material part
Transfer of Corporation Stocks. (See Corporations .)
thereof, out of the State with the intent of cheating, hindering or delayor his creditors .
Wills. Wills must be in writing, signed by the testator, or by some- ingBanks.
Banking may be carried on by individuals or by corporaone for him, in his presence and by his direction, and must be attested
organized under the general incorporation law of the State, or
tions
by two or more credible witnesses above the age of fourteen years, in
by national banks. The State laws prescribe no special regulations
the presence of each other and the testator. When the will is wholly for
banking. Officers and employes of banks are criminally liable for
written by the testator, no witnesses are necessary. Nun-cupative
making false reports, and for receiving deposits knowing bank to be
wills may be made when property willed does not exceed in value Insolvent.
$50, unless it be proved by three credible witnesses that the testator
Bills of Exchange and Promissory Notes. No person can be
called on some person to take notice and bear testimony that such is
his will, and that the testimony, or the substance thereof, was comcharged as an acceptor of any bill of exchange unless his acceptance
shall be in writing. If the acceptance is written on another paper
mitted to writing within six days after the making of such will ; in
such case the amount willed is not limited. Wills are revocable by
than the bill , it shall not bind the acceptor except in favor of the
person to whom such acceptance shall have been shown, and who,
subsequent will, codicil, or declaration in writing, executed with like
formalities as in execution of will, or by testator destroying, canceling,
on the faith thereof, shall have received the bill for a valuable conor obliterating the same, or causing it to be done in his presence, or sideration. Every holder of a bill presenting it for acceptance may
by subsequent marriage, and no provision is made for wife. Foreign
require an acceptance on the bill; otherwise the bill can be protested
wills,
probate whereof is duly authenticated, may be probated for non-acceptance . Notwithstanding the above provisions any one
here. the
Contests of wills can not be initiated after one year from date
promising to accept a bill is liable to any person to whom a promise to
of probating
accept it may have been made; and who. on the faith of the promise.

1376

BANKING AND COMMERCIAL LAWS - ARKANSAS

has drawn and negotiated the bill. Any person on whom a bill is
drawn, and to whom the same may be delivered for acceptance , who
shall destroy it or refuse within twenty-four hours or such time as the
holder may allow to return the bill accepted or not accepted to the
holder, shall be deemed to have accepted the same. The following are
the holidays : Sunday , Christmas, Fourth day of July, Washington's
Birthday, Lee's Birthday , January 19th, and the first Saturday of
March each year, Arbor Day and Thanksgiving Day. When the bills
become due on any of these days, they are payable the next day preceding. But the holders need not give the notice of dishonor until the
next day after such holiday. The following damages are allowed
where a bill is protested for non-acceptance or non-payment: If the
bill is drawn on any place in this State. 2 per cent ; if payable in the
States of Alabama. Louisiana, Mississippi, Tennessee, Kentucky,
Ohio, Indiana, Illinois, or Missouri, or any point on the Ohio River,
4 per cent; if drawn on any other place in the United States, 5 per
cent; if beyond the limits of the United States, 10 per cent. If the
bill be drawn by any person at any place within this State, at the rate
of 2 per cent; if drawn by any person at any place without this State,
but within the limits of the United States , 6 per cent; if drawn by
any person without the limits of the United States, 10 per cent. The
holder of any bill protested for non-payment or non-acceptance is
entitled to costs of protest and interest at the rate of 10 per cent per
annum on the amount of the bill from date of protest. The term
Bill of Exchange includes all drafts or orders drawn by one person on
another for the payment of a sum of money specifled therein. Bills
and notes given for patented machines, implements, substance, or
instruments of any kind, given to any citizen of this State, are not
commercial paper, unless executed on a printed form, and showing
for what 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 assigments 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 follow 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 acknowledged. ( See Acknowledgments.) If witnessed they are proved
by the oath of two witnesses, and are then entitled to record as though
acknowledged . 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 attorney and make executory contracts of sale. Deeds
which have been recorded and are properly acknowledged prove themselves. Any substantial 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 and treasurer must reside and keep the books of the company within the State. The articles of association must be signed by
the president and a majority of the directors, and must be accompanied by a certificate 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
llable 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. Preferences 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 State Treasurer, to-wit: Where the capital stock
is more than $ 25,000 and not over $ 100,000 , $ 25.00 tax must be paid ;
where the capital stock is more than $ 100,000, 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
paid .'capital stock of more than one million dollars, $ 200.00 must be
Foreign Corporations shall, before doing business in the State, by
its president file in the office of the secretary of State a certificate
under the seal of the company naming an agent, who shall be a citizen
of this State upon whom service of process can be made. The certificate shall state the principal place of business of the corporation :
and service on the agent shall bind it. The corporation must also file
a certilled copy of its charter together with a statement of its assets
and liabilities, and the amount of its capital employed in this state
in the office of the secretary of State, and in the office of the county
where it opens an office, and must pay same fees as are required of
home corporations. It must also le a resolution of its board of
directors consenting that service of process on any of its agents or on
the secretary of State shall be a good service. If it sues in the federal
court or removes a suit there without consent of its adversary, its
right to do business is revoked . Doing business here without compliance with the law subjects the corporation to a fine of not less than
$1,000. These
requirements
notState
applyprior
to to
railroad
or telegraph
companies
that had
built lines do
in the
Feb. 16,
1899. If
any
corporation
falls
to
appoint
an
agent,
service
of
process
on any
the
auditor of State shall bind it. No foreign corporation can sue on
contract made in this State until these provisions are complied with.
Courts. The supreme court is held at Little Rock and has jurisdiction of appeals from the circuit and chancery courts. In all countles separate courts of chancery have been established . The estates
of deceased persons are entrusted exclusively to the probate courts.
with right of appeal to the circuit and thence to the supreme court.
Claims against counties are heard by the county court, as also matters
touching
paupers and the like. The justices ' courts have jurisdiction
of matters of contract not exceeding $300, and matters of tort not
exceeding $ 100. Two terms of the circuit and chancery court and
four of the county and probate courts are held in each county per year.
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 parts per stirpes. Illegitimate children Inherit
and transmit an inheritance from the mother in the same manner as
if legitimate. If the parents of illegitimate children subsequently
intermarry and the father recognizes them as his, they shall be deemed
legitimate.
In their
default
of heirs
theState.
whole If
property
goesis to
husband
or wife, and in
default
to the
the estate
ancestral
it
goes to the blood of the ancestor from whom it was derived . Relations of the half-blood inherit equally. Heirs take as tenants in
common
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
crime; fifth, habitual drunkenness for one year; cruel and barbarous
treatment, or such indignities as render the plaintiff's condition
intolerable; sixth, adultery. Proceedings must be had in the county
where the plaintiff resides and the plaintiff must have resided in the
State one year before the commencement of the action , and must
show that the cause of divorce occurred in this State or was a ground
for divorce in the State where it occurred , unless plaintiff was then a
resident of this State, and that the cause of divorce occurred within
five years before the beginning of the suit. Claims for alimony may
be asserted either in the suit for divorce or by a separate action. Upon
a divorce cach party is required to surrender to the other all property
acquired from the other, and if the wife procures the divorce she takes
one-third of the husband's real and personal property.
Dower. Where there are children the wife takes one-third of the
husband's personal estate absolutely and one-third of the real estate
of which he was seized at any time during the marriage, for life. Where
there are no children she takes in a new acquisition one-half of the real
and personal estate absolutely as against heirs, or one-third absolutely
at against creditors . If it is an ancestral estate, she takes one-half for
life against heirs and one-third for life against creditors.
Executions from the circuit court are returnable in sixty days .
those from justices' courts within thirty. They may be stayed for
six months by giving bond. They are a llen on the property of the
defendant in the county from the time they come to the officer's
hands. The officer before levying on personal property, the title
to which is doubtful, may require the plaintiff to give him an indemnifying bond, and then suit must be brought by the claimant upon
the bond. The defendant and other judgment 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 proceed by bill of discovery
against the defendant and examine him on oath, and enforce a surrender of concealed property by imprisonment.
Exemptions. Unmarried persons are entitled to $200 and married
persons and heads of families to $ 500 in selected articles of personal
property as exempt against debts by contract. Persons who are
married or heads of families are entitled to a homestead as against all
debts, except the purchase-money, specific llens, laborers' and mechanics' liens, taxes and claims for trust funds converted. The homestead
in the country is not to exceed 160 acres, and in town not to exceed
one acre, nor to be worth more than
but the country homestead is not to be reduced to less than 80$2,500,
acres nor the town homestead
to less than one-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 be conveyed by deed in which the wife joins and
which is acknowledged by her, and if the husband neglects to claim
the homestead the wife may do so.
Fraud. The English statute of fraudulent conveyances has been
re-enacted in this State .
Garnishments may be sued out pending sult upon giving bond in
double the amount garnished, or after judgment without bond.
Holidays . (See Bills of Exchange and Promissory Notes .)
Husband and Wife. (See Married Women.)
Injunctions may be issued by circuit judges, chancellors, or the
judge of any court in which suit is brought. The person applying
for the injunction must give bond as the court or judge may direct.
Insolvency. Any insolvent debtor may apply to the chancery
court
for the
appointment of a receiver, who may have all attachments
dissolved,
take
possession of all the debtor's assets, and pay the proceeds, first, to laborers and employees whose claims may have accrued
within three months . second, to all creditors who will execute a release.
and third, to the creditors generally.
Interest. The legal rate of interest is 6 per cent, but parties may
contract in writing for not exceeding 10 per cent. Interest exacted in
excess of 10 per cent forfeits the debt. In computing the interest
commissions paid to the agent of the lender are counted as interest.
Where
usuary
is charged
the borrower
go intothe
equity
and havethe
debt
and
securities
cancelled
without may
tendering
amount
lawfully
due. Judgments bear the same rate of interest as the obligation sued
on. Judgments against counties bear no interest.
Judgments (See Interest) are liens upon the real estate of the
debtor in the county where rendered for three years. The lien may be
renewed and continued for three years by scire facias. Judgments
of the United States and other courts can be made liens on lands in
counties other than that where they are rendered by filing a certified
copy in the office of the circuit clerk.
Jurisdiction. (See Courts .)
Liens. Mechanics, builders, artisans, laborers, and others doing
any work upon or furnishing any material for any building or erection
under any contract with the owner or his agent, contractor or subcontractor, shall have for such work or material furnished a lien on
the building or improvement together with the land on which it stands
to the extent of one acre If in the country; if in a city the lot or land
upon which the erection is situated . Hotel keepers have lien on
baggage and personal effects of guests. Liveryman have lien on all
stock and property left in their care.
Limitations. Suits for the possession of real estate must be
brought within seven years, saving to minors, married women, and
lunatics
years
after
disabilities
are be
removed
. Actions
for
recovery three
of lands
sold
at their
judicial
sales must
brought
within five
years, saving to minors and lunatics three years after removal to
disabilities. Actions for the recovery of lands held under tax title
must be brought in two years. Actions for forcible entry and detainer,
on contracts not in writing, for trespass and for libel, within three
years. Actions for criminal conversation, assault and battery, false
Imprisonment, and slander, within one year. Actions on written
instruments, within five years; on judgments, within ten years; on
bonds of executors and administrators, within eight years. In all
cases, except actions for the recovery of lands, minors and lunatics
have, after removal of their disability, the statutory period in which
to sue. Verbal promises or acknowledgments do not take a claim

BANKING AND COMMERCIAL LAWS- CALIFORNIA
out of the statute. One year is allowed after dismissal of a suit in
which to begin a new action. No person can avail himself of a disability which did not exist at the time the right of action accrued . No
endorsement of payment made by the payee or on his behalf is suffcient proof to take the case out of the statute.
Limited Partnerships may consist of one or more general
one
or more special partners . The latter of whom shall constitute ,inand
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 certificate showing name of firm, names of partnerships, distinguishing between general and special, nature of business, amount
of capital contributed by each partner, period of commencement and
termination of partnership. Business to be conducted by general
partners and suits brought by or against them.
Married Women. The property, real and personal, of married
women remains their separate estate as long as they choose, and may
be devised or conveyed without the husband's assent, and is not
making any disposition of
subject to his debts. If she dies withoutShe
may carry on any busiher real estate, he is entitled to curtesy.
ness or perform any services on her own account, and her earnings are
hers, and she may sue alone in respect of her separate property. She
can bind herself by contract only in reference to her separate estate or
business. She can not enter into partnership with her husband. If she
does not file a schedule of her personal property, the burden of proof
is on her to show that it is hers.
Mines and Mining . Under control of commissioner of mines.
All documents relating to mines must be recorded in the recorder's
office of the county; and miners of the county may make by-laws
regarding the time, manner, and amount of work necessary to hold
claims and other rules and regulations not in conflict with law. Exten
sive provisions are made for the protection of the health and safety
a lien on the output,
of miners. (Acts 1893 , p . 213 ) . Miners have for
work done. Three
machinery, and tools used to secure payment
years' possession of a mine, with work required by law, gives possessory
right.
Mortgages are not liens as against any one, though such person
has actual notice of their existence, until they are acknowledged in
he form prescribed and filed for record. Mortgages of real estate
are recorded in the county where the land lles, and mortgages of
personal property in the county of the mortgagor's residence. If the
mortgagor of personality is a non-resident the mortgage is recorded
in the county where the property is situate. Sales under mortgages
and deeds of trust can be made only after appraisement, and the
property must bring two-thirds of the appraised value. In case it is
qffered and falls to bring the required amount real estate may be
offered again after one year and personal property after sixty days,
and is then sold for what it will bring. The mortgagor of real estate
has one year from the date of sale in which to redeem. In action to
foreclose a mortgage, it is sufficient defence that the debt (which it
of limitations.and filed as other mortstatute
barred bymay
, isMortgages
recites)
be acknowledged
Chattel
gages, or they may be endorsed "This instrument is to be filed but not
recorded," signed by the mortgagee, and may then be filed in the
recorder's office with the same effect as though recorded . Mortgages
of personal property reserving in the mortgagor the power of disposition are fraudulent.
Powers of Attorney. Lands may be conveyed by power of attorney, which is acknowledged as deeds and recorded in the county
where the lands lie.
Probate Law. (See Administration of Estates.)
Protests . (See Bills of Exchange and Promissory Notes.)
Records. (See Acknowledgments, Conveyances, Mortgages,
Chattel Mortgages, and Powers of Attorney .)
Redemption . (See Executions and Mortgages .)
Replevin . The plaintiff in replevin may file an affidavit describing
the property, stating its value and the amount of damages he expects
to recover, his title, that the property is wrongfully detained by the
defendant, that it has not been taken for a tax or under process against
plaintiff, and that his cause of action has accrued within three years,
and upon giving bond in double its value, the property shall be taken
from the defendant and given to the plaintiff pending the suit, unless
the defendant within two days after it is taken gives a cross-bond.
Revision. The constitution requires that the statutes shall be
revised every ten years. The last revision was in 1904.
Taxes are a llen between vendor and purchaser from the first Monday in December. They are payable between the first Monday In
January and the 10th of April. In case of non-payment a penalty of
25 per cent is added. Lands may be redeemed within two years by
paying taxes, penalty, and costs, with 10 per cent interest. Minors,
lunatics, and persons in confinement may redeem within two years
after their disability is removed . (See also Corporations .)
Testimony. (See Evidence .)
Transfer of Corporation Stock. (See Corporations.)
Trust Companies must have a paid-up capital of $ 50,000, and
in countles with a population exceeding 50,000, they must have a subscribed capital of not less than $ 100,000. They may exercise all the
powers commonly conferred on such companies.
Warehouse Receipts and Bills of Lading shall not be given
except where the commodities mentioned are received on the premises,
and are under the control of the warehouseman at the time of its
Issuance. No warehouseman shall sell, encumber, ship , or remove
any such commodity for which a receipt has been given without the
written assent of the holder of the receipt. The same provisions cover
owners and agents of boats and vessels . All warehouse receipts and
bills of lading are made negotiable by written endorsement and
delivering the same as bills of exchange and promissory notes, and no
printed or written conditions, clauses, or provisions inserted in or
attached to them shall in any way limit their negotiability or Impair
the rights and duties of the parties thereto, or persons interested
therein, or such conditions shall be vold. Warehouse receipts given
by any warehouseman or other person for goods and other commodities deposited, and all bills of lading given by any carrier, boat,
vessel, railroad, transportation, or transfer company may be transferred by endorsement and delivery; and the transferee shall be
deemed to be the owner of such commodities so far as to give validity
to any pledge, lien, or transfer given, made, or created thereby; and
no property so stored or deposited shall be delivered except on surrender and cancellation of such receipts and bills of lading, unless
such receipts and bills of lading have the words " not negotiable"
plainly written or stamped on their face. A carrier may however
deliver to shipper or consignee goods without presentation of bill of
lading upon receiving
from such shipper or consignee bond in double
the value of the goods conditioned for delivery to the carrier thereafter the original bill of lading (acts 1907) . Penalties are denounced
against any warehouseman or other person
shall violate any of
the provisions of this statute. So much ofwho
the act as forbids the
delivery of property except the surrender and cancellation of the
original receipt or bill of lading shall not apply to property replevined
or removed by operation of law.

1377

Wills. A will must be subscribed by the testator or by some person
for him at his request in the presence of two attesting He
witnesses,
or he
must declare
must acknowledge it to be his will to each of them.
at the time of his subscription or acknowledgment to the witnesses
that the instrument is his will and testament. The witnesses must
sign their names at the end of the will as witnesses at the request of
the testator. If, however, the entire will is in the hand-writing of the
testator, it need not be attested , but may be proved by three witnesses
familiar with the hand-writing. Such will, however, can not be
pleaded in bar of an attested will. Wills are revoked by marriage and
birth of issue, unless provision for such issue is made by settlement,
or is provided for in the will. The will of an unmarried woman is
revoked by her marriage. Afterborn children, not mentioned in the
will, take their regular distributive share. If the testator fails to
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 case of an open book
account, each item becomes outlawed four years after its date. (See
Actions and 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 on behalf of the corporation, or proved by a
subscribing witness, or by judgment in an action brought for 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, or a judge of the superior court and within the city,
county, or township for which the officer was appointed or elected ,
before either: (1) A clerk of a court of record ; (2) a county recorder;
(3) a court commissioner; (4) a notary public; (5) a justice of the
peace. The acknowledgment of an instrument must not be taken,
unless the officer taking it knows or has satisfactory evidence, on the
oath or affirmation of a credible witness that the person making such
acknowledgment is the individual who is described in, and who executed the instrument; or if executed by a corporation, that the person
making such acknowledgment is the president or secretary of such
corporation, or other person who executed it on its behalf. Officers
taking and certifying acknowledgments or proof of instruments for
record, must authenticate their certificates by affixing thereto their
signatures, also their seals of office, if by the laws of the State or country where the acknowledgment or proof is taken, or by authority of
which they are acting, they are required to have official seals . Acknowledgments taken out of this State to be used within this State
may be 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, consul, vice-consul, or consular agent of the
United States.
Actions. All civil actions are commenced by filing a complaint ,
upon which plaintiff may, at any time within one year thereafter, have
a summons issued . The only pleadings allowed on the part of the
r to the answer.
plaintiff are : 1. The complaint . 2. The demurre
3. The demurrer to the cross-complaint . 4. The answer to the crossto
complaint , and on the part of the defendant : 1 . The demurrerThe
the complaint . 2. The answer. 3. The cross-complaint . 4.
demurrer to the answer to the cross-complaint .
Administration of Estates. Upon the admission of a will to
probate, letters testamentary are granted by the superior court to the
executor named in the will, unless he be dead or incapable or unwilling
to act, in which case letters testamentary are issued to an administrator with the will annexed , appointed by said court. In case of
intestacy , letters of administration are issued to the bona fide resident of the state entitled thereto, in the following order: 1. SurvivIng husband or wife, or some competent person named by either.
or mother. 4. Brothers . 5. Sisters.
2.
3. . Father
6. Children
Grandchi.ldren
7. Next of kin entitled to share in the distri8.
Public administrator. 9. Creditors .
the
estate
.
bution of
person legally competent . Where the person entitled to
10 . Anyration
administ
is a minor or incompetent , letters must be granted to
his or her guardian, or to any other person entitled to letters of
administration in the discretion of the court. Bonds for faithful
performance of duty are required of an administrator and of an
executor unless waived by the will. Notice must be given by the
administrator or executor by publication to all the creditors to come
in and prove their claims within ten months after its first publication .
when the estate exceeds in value the sum of ten thousand dollars,
and four months when it does not: Unless claim is approved within
the time provided for in the notice it is barred , unless the claimant
can prove to the satisfaction of the court that he had no notice' by
reason of being out of the State, in which case the claim may be presented at any time before a decree of distribution is entered . When a
claim is rejected either by the executor or administrator or the judge,
the holder must bring suit in the appropriate court thereon within
three months after the date of its rejection, if it be then due, or within
two months after it becomes due, otherwise the claim is forever
barred. No claim can be allowed which is barred by the Statute of
Limitations . Claims against the estate are paid in the following
order: 1. Funeral expenses . 2. The expenses of the last sickness .
3. Debts having preference by 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. Judge, or
officer of this State may be taken before any officer authorized to
administer oaths. In this State every court, every Judge or clerk of
any court, every justice and every notary public, and every officer or
person authorized to take testimony in any action or proceeding, or
decide upon evidence, has power to administer oaths and affirmations.
An affidavit taken in another State of the United States to be used
in this State, may be taken before a commissioner appointed by the
governor of this State to take affidavits and depositions in such other
State, or before any notary public in another State. or before any
clerk of a court of record having a seal. Au affidavit taken in a foreign

1378

BANKING AND COMMERCIAL LAWS- CALIFORNIA

country to be used in this State, may be taken before an ambassador,
minister, consul, vice-consul, or consular agent of the United States,
or before any clerk of a court of record having a scal, 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 succession 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 delivered to the parties, and when the submission is made
by an order of the court, must be filed by the clerk who enters the
same, after the expiration of five days, in the judgment book, and
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 fiduclary capacity; also in actions to recover the possession of personal
property where it has been concealed or removed or disposed of to
prevent its being found ; also in cases where the defendant has been
guilty of a fraud in contracting the debt or obligation for which action
is brought; or in concealing or disposing of property; also when the
defendant has removed or disposed 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-resident, 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 compromise his demand.
Attachments may be issued at the time of or any time after
Issuing the summons. All property not exempt from execution may
be attached . An attachment llen 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 amdavit by or on behalf of the plaintiff, showing. (1) That the defendant
is indebted to the plaintiff, specifying the amount of such indebtedness
over and above all legal set-offs or counter-claims, upon a contract,
express or implied, for the direct payment 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 or plaintiff,
or the person to whom the security was given, become valueless ; or
(2) That the defendant is a non-resident of the State, and is indebted
to plaintiff, specifying the amount of such indebtedness over and
above all legal set-offs or counter-claims, upon a contract expressed
orimplied; or (3 ) That plaintiff's cause of action against defendant
is one to recover a sum of money as damages (specifying the amount
thereof) arising from an injury to property in this State in consequence
of the negligence, fraud or other wrongful act of the defendant, and
that the defendant is a non-resident of the State ; and (4) That the
attachment 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 suretles, to the effect that, if the
defendant 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
undertaking, and that if the attachment is discharged on the ground
that the plaintiff was not entitled thereto , the facts required in the
above not being existent, the plaintiff will pay all damages which the
defendant may have sustained by reason of the attachment, not
exceeding the sum specified in the undertaking .
Banks. The business of banking may be carried on by any corporation, organized for that purpose, under the general laws of the
State, or by any individual or copartnership, except it be a special
copartnership. A banker has a general llen dependent upon possession of all property in this 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 examination (and the expenses of whose office
are borne by the banks operating in this State, proportionate to their
aggregate 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 incorporated,
engaged in the business of banking in the State must apply for and
take out a license for such privilege, and shall be subject 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 countles or towns or school districts of the State of
California, or bonds of railroad or street rallroad 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 corporation 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.
Bills and Notes. Negotiable Instruments . A negotiable instrument is a written promise or request for the payment of a certain sum
of money to order or bearer. It must be made payable in money
only to a person ascertainable at the time the instrument is made, and
without any condition not certain of fulfillment. It may be with or

without date, and with or without the designation of the time or place
of payment . It may contain a pledge of collateral security, with
authority to dispose thereof. Bills of exchange, promissory notes.
bank
notes, checks, bonds, and certificates of deposit are negotiable
Instruments.
Any date may be inserted by the maker of a negotiable
instrument, whether past, present, or future; and the instrument is
not invalidated by his death or incapacity at the time of the nominal
date . Days of grace are not allowed. Acceptance must be in writing
by the drawee or by an acceptor for honor, and may be made by the
acceptor writing his name across the face of the bill with or without
other words. The acceptance of a bill of exchange by a separate
instrument binds the acceptor to one who, upon the faith thereof,
has the bill for value or other good consideration. The holder of a
bill of exchange, if entitled to an acceptance thereof, may treat the
bill as dishonored if the drawee refuses to write across its face an
unqualified acceptance. An unconditional promise in writing to
accept a bill of exchange is a sufficient acceptance thereof in favor of
every person who, upon the faith thereof, has taken the bill for value.
The protest of a notary, under his hand and official seal, is prima facie
evidence of the facts contained therein . A bill of exchange, if accepted
with the consent of the owner by a person other than the drawee, or
an acceptor for honor, becomes, in effect, the promissory note of such
person, and all prior parties thereto are exonerated . If a promissory
note, payable on demand or at sight, without interest, is not duly presented for payment within six months from its date, the indorsers
thereof are exonerated, unless such presentation is excused.
Chattel Mortgages may be made on any personal property.
including growing crops and fruit, except personal property not cappersonal
able of manual delivery, articles of wearing apparel andabsence
of
adornment, and the stock in trade of a merchant. In the
delivery and continued change of possession, the chattel mortgage
will be void as to creditors of the mortgagor unless acknowledged or
proved, certified, and recorded , as required in cases of grants of real
property and accompanied by affidavits of all the parties that it is
made in good faith, and without any design to hinder, delay or defraud
creditors.
Collaterals. Are governed by the law relating to pledges of personal property. A pledge is a deposit of personal property by way of
security for the performance of any act. DeliveryWhen
of the
thething
perpledged is essential to the validity of the ballment.
formance of the act for which the pledge is given is due in whole or
in part, the pledgee may collect what is due to him by the sale of the
property pledged . But before the property can be sold the pledgee
must demand performance thereof from the debtor, if he can be
found, and must give actual notice to the pledgor of the time and
place at which the property pledged will be sold , at such a reasonable
time before the sale as will enable the pledgor to attend, but notice
of the sale may be waived by the pledgor at any time. The sale
must be by public auction and must be for the highest obtainable
price After the sale the pledgee may deduct from the proceeds the
amount due and the necessary expenses of sale and collection, and
must pay the surplus to the pledgor. The pledgee, or a pledgeholder,
may
purchaseA the
property
the same ofis debt
sold
at public
auction.
pledgee
can pledged
not sell when
any evidence
(collateral) pledged to him, except the obligations of governments,
states, or corporations ; but he may collect the same when due.
Contracts. The following contracts are invalid unless the same
or some note or memorandum thereof is in writing, and subscribed by
the party to be charged , or his agent. 1. An agreement that by its
terms is not to be performed within a year from the making thereof.
2. A special promise to answer for the debt, default, or miscarriage
of another, except in certain cases, the general type of which is where
the party making the promise has assumed the obligation as a principal obligation. 3. An agreement made upon consideration of
marriage other than mutual promise to marry, 4. An agreement for
the sale of goods, chattels, or things in action, at a price not less than
$200, unless the buyer accepts or receives part of such goods or chattels, or the evidences, or some of them, of such things in action, or pays
at the time some part of the purchase money ; but when a sale is made
at auction, an entry by the auctioneer in his sale book at the time of
the sale of the kind of property sold, the terms of the sale, the price.
and the names of the purchaser and person on whose account the sale
was made, is a sufficient memorandum. 5. An agreement for the
leasing for a longer period than one year, or for the sale of real property or of an interest therein; and such agreement, if made by an
agent of the party sought to be charged , is invalid unless the authority of the agent is in writing, subscribed by the party sought to be
charged. 6. An agreement authorizing or employing an agent or
broker to purchase or sell real estate for compensation or a commission. 7. An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise
or bequeath any property, or to make any provision for any person
by will.
Conveyances. An estate in real property, other than an estate at
will, or for a term not exceeding one year, can be transferred only by
operation of law, or by an instrument in writing, subscribed by the
party disposing of the same, or by his agent thereunto authorized in
writing. A fee simple title is presumed to be intended to pass by a
grant of real property, unless it appears from the face of the grant
that a lesser estate was intended . A grant of real property may be
made in the following form : "I, A. B., grant to C. D. all that real
property situated in (insert name of county) county, State of Callfornia, bounded (or described) as follows: (Here insert description,
or if the land sought to be conveyed has a well-established descriptive
name, it may be described by such name as for instance: The
Norris Ranch. ') Witness my hand this (Insert) day of (insert month) ,
19- . A. B." The use of the word "grant" implies the following
covenants : 1. That previous to the time of the conveyance the
grantor had not conveyed the same estate, or any right, title, or interest therein to any person other than the grantee. 2. That such
estate is at the time of the execution of the conveyance free from
incumbrances, done, made, or suffered by the grantor. Subsequently
acquired title passes by operation of law to the grantee, or his successors. Instruments entitled to be recorded must be recorded by
the county recorder of the county in which the real property affected
thereby is situated. Every conveyance of real property, acknowl
edged or proved and certified and recorded as prescribed by law, from
the time it is filed with the recorder for record, is constructive notice
of the contents thereof to subsequent purchasers and mortgagees, and
every conveyance of real property other than a lease for a term not
exceeding one year is vold as against any subsequent purchaser or
mortgagee of the same property, or any part thereof, in good faith
and for a valuable consideration, whose conveyance is first duly
recorded.
Corporations. Private corporations may be formed by the voluntary association of any three or more persons, In the manner prescribed
by statute. A majority of such persons must be residents of this
State . Private corporations may be formed for any purpose
which
Individuals may lawfully associate themselves. The numberfor
of direc
tors of corporations for profit, except those above mentioned as
excepted, may be increased or diminished, by a majority of the stockholders of the corporation to any number, not less than three, who
must be members of the corporation. A certificate of such number
must be filed however. A copy of the articles of incorporation, certinied by the secretary of State, must be filed with the county clerk of

BANKING AND COMMERCIAL LAWS - CALIFORNIA
every county where the corporation purchases, acquires or locates
property, within sixty days after such purchase or location. Upon
aling the articles of Incorporation in the office of the county clerk
of the county in which the principal business of the company is to be
transacted , a copy thereof, certified by the county clerk, with the
secretary of State, the secretary of State must issue to the corporation
over the great seal of the State a certificate that a copy of the articles
containing the required statement of facts has been filed in his office,
and thereupon the persons signing the articles, and their associates
and successors, shall be a body politic and corporate by the name
stated in the certificate, and for a term of fifty years, unless it is in the
articles of Incorporation otherwise stated, or in the code otherwise
specially provided . A copy of the articles of incorporation, certified
by the secretary of State. must be filled with the county clerk of every
county where the corporation acquires or locates property within sixty
days after such purchase or location. A copy of any articles of incorporation filed in pursuance of this chapter, and certified by the secretary of State, must be received in all the courts, and other places as
prima facie evidence of the facts therein stated . (See Foreign Corporations.)
Liability of Stockholders. Each stockholder of a corporation if
individually and personally liable for such proportion of its debt and
liabilities incurred while he was a stockholder as the amount of stock
or shares owned by him bears to the whole of the subscribed capitla
stock or shares of the corporation, and for a like proportion only of
each debt or claim against the corporation . Any creditor of the
corporation may institute joint or several actions against any of its
stockholders for the proportion of this claim, payable by each, and in
such action the court must ascertain the proportion of the claim or
debt for which each defendant is liable, and a several judgment must
be rendered against each in conformity therewith. If any stockholder
pays his proportion of any debt due from the corporation incurred
while he was such stockholder, he is relieved from any further personal
llabilities for such debt ; and if an action has been brought against
him for such debt, it shall be dismissed as to him upon his paying
the costs, or such proportion thereof as may be properly chargeable
against him. The term " stockholder" extends to every equitable
owner of stock, although the same appears on the books in the name
of another, and also to every person who has advanced the installments or purchase money of stock in the name of a minor, so long as
the latter remains a minor; and also to every guardian or other
trustee who voluntarily invests any trust funds in the stock. Stock
held as collateral security, if fact of pledge appears, or by a trustee, or
in any other representative capacity, does not make the holder thereof
a stockholder, except in the case above mentioned, so as to charge
him with any proportion of the debts or liabilities of the corporation;
but the pledgor, or person, or estate represented is to be deemed the
stockholder as respects such liabilities. In corporations having no
capital stock, each member is individually and personally liable for his
proportion of its debts and liabilities, and similar actions may be
brought against him, either alone or jointly with other members, to
enforce such liabilities as by this section may be brought against one
or more stockholders, and similar judgments may be rendered .
Courts. Terms and Jurisdiction . Justices' courts have civil
jurisdiction: 1. In actions arising on contracts for the recovery of
money, only if the sum claimed , exclusive of interest, does not amount
to $300, and the jurisdiction of a justice of the peace in all cases
where money judgment is recoverable is limited to $300. 2. In
actions for damages for injury to the person, or for taking, detaining,
or injuring personal property, or for injury to real property, where
no issue is raised by the verified answer of the defendant involving
the title to or possession of the same, if the damages claimed do not
amount to $300 . 3. In actions to recover the possession of personal
property, if the value of such property does not amount to $300 .
4. In actions for a fine, penalty, or forfeiture not amounting to
$300 given by statute, or the ordinance of an incorporated city or
town, where no issue is raised by the answer involving the legality
of any tax, impost. assessment, toll, or municipal fine. 5. In
actions upon bonds or undertakings conditioned for the payment of
money, if the sum claimed does not amount to $300, though the
penalty may exceed that sum. 6. To take and enter judgment for
the recovery of money on the confession of a defendant, when the
amount confessed, exclusive of interest, does not amount to $ 300.
7. Also concurrent jurisdiction with the superior courts, within their
respective townships in actions of forcible entry and detainer, where
the rental value of the property entered upon or unlawfully detained
does not exceed $ 25 per month, and the whole amount of damages
claimed does not exceed $ 200 . Also in actions to enforce and foreclose lens on personal property, where neither the amount of the
llens nor the value of the property amounts to $300.
Superior Court. The jurisdiction of the superior court is of two
kinds : 1. Original. 2. Appellate. The superior court has original
jurisdiction in all cases in equity; in all civil actions in which the subject of litigation is not capable of pecuniary estimation; in all cases at
law which involve the title or possession of real property, or the
legality of any tax, etc., and in all other cases in which the demand,
exclusive of Interest or the value of the property in controversy,
amounts to $300 ; of actions of forcible entry and detainer, of proceedings in insolvency; of actions to prevent or abate a nuisance; of
all matters of probate, of divorce and for annullment of marriage:
and of all such special cases and proceedings as are not otherwise
provided for. They also have power to issue writs of mandamus,
certiorari, prohibition, quo warranto, and of habeas corpus on petition
by or on behalf of any person in actual custody in their respective
counties. Injunctions and writs of prohibition may be issued and
served on legal holidays and non-judicial days. The superior courts
have appellate jurisdiction in cases arising in justices' and other
Inferior courts in their respective counties provided the appeal be
taken
within
thirty
days of the
State is divided into three appellate
The judgment.
Courts
District
of Appeal.
districts, each of which has a court of appeals with three justices.
These courts have appellate and original jurisdiction. The general
line of demarcation between the supreme court and these courts is
the amount of money or the value of the property involved. The
from
district courts of appeal have appellate jurisdiction on appeal
the superior courts in all cases at law in which the demand exclusive
of interest or the value of the property in controversy amounts to
$300 and does not amount to $ 2,000 ; also in all cases of forcible
entry and detainer (except such as arise in the justices' courts) ;
in proceedings in insolvency, and in actions to prevent or abate a
prohibition,
nuisance; in proceedings in mandamus, certiorari anddomain,
and
usurpation of office, contesting elections and eminent
in such other special proceedings as may be provided by law (excepting in cases in which appellate jurisdiction is given to the supreme
court) ; also on questions of law alone in all cases prosecuted by
indictment or information to a court of record, excepting criminal
cases where judgment of death has been rendered . Sald courts also
have appellate jurisdiction in all cases, matters and proceedings
pending before the supreme court which shall be ordered by the
to be transferred to a district court of appeal for
supreme court
hearing and decision.
Supreme Court. Has original and appellate jurisdiction . In the
exercise of original jurisdiction It shall have power to issue writs of
mandamus, certiorari , prohibition, and habeas corpus; it shall also
have power to issue all other writs necessary and proper for the
complete exercise of its appellate jurisdiction. The supreme court
has appellate jurisdiction in all cases in equity, except such as arise

1379

in the justices' courts; also in all cases at law which involve the title
or possession of real estate or the legality of any tax, impost, assessment. toll or municipal fine, or in which the demand exclusive of
interest or the value of the property in controversy amounts to
$2,000; also in all such probate matters as may be provided by law;
also on questions of law alone in all criminal cases where the judgment
of death has been rendered; the said court also has appellate jurisdiction in all cases, matters and proceedings pending before a district court of appeal which shall be ordered by the supreme court to
be transferred to itself for hearing and decision.
Depositions. The deposition of a witness out of this State may
be taken upon a commission issued from the court under the seal of the
court, upon an order of the court, or a judge or justice thereof, on the
application of either party, upon five days' previous notice to the
other. If the court be a justice's court, the commission shall have
attached to it a certificate under seal by the county clerk of said
county to the effect that the person issuing the same was an acting
justice of the peace at the date of the commission. If issued to any
place within the United States, it may be directed to a person agreed
upon by the parties, or if they do not agree, to any judge or justice
of the peace or commissioner selected by the court, or judge, or
justice issuing it. If issued to any country out of the United States.
It may be directed to a minister, ambassador, consul, vice- consul, or
consular agent of the United States in such country, or to any person
agreed upon by the parties. The commission must authorize the
commissioner to administer an oath to the witness. The testimony
of a witness out of the State may be taken by deposition in an action,
at any time after the service of the summons or the appearance of the
defendant; in a special proceeding, at any time after a question of
fact has arisen therein . Depositions must be taken in the form of question and answer. The words of the witness must be written down,
in the presence of the witness, by the officer taking the deposition or
by some indifferent person appointed by him . It may be taken down
in short hand in which case it must be transcribed to long hand by
the person who took it down. When completed, it must be carefully
read to or by the witness and corrected by him in any particular, if
desired, by writing or causing his corrections to be written at the
the deposition, and must then be subscribed by the witbottom
ness
. Ifofthe
parties agree in writing to any other mode, the mode
be followed
uponin must
agreed ons
so Depositi
The . testimony of the witness in this
this State.
State may be taken by deposition in an action at any time after the
service of summons or the appearance of defendant, and in a special
proceeding after a question of fact has arisen therein, in certain
enumerated cases.
Depositions for Use out of the State. Any party to an action or
special proceeding in a court or before a judge of a sister state, may
obtain the testimony of a witness residing in this State, to be used in
such action or proceeding, In the cases mentioned following : If a
commission to take such testimony has been issued from the court.
or a judge hereof, before which such action or proceeding is pending. on producing the commission to a judge of the superior
court with an affidavit satisfactory to him of the materiality of the
testimony, he may issue a subpoena to the witness, requiring him to
appear and testify before the commissioner named in the commission, at a specified time and place. If a commission has not been
issued and it appear to a judge of the superior court, or a justice of
the peace, by affidavit satisfactory to him: 1. That the testimony
of the witness is material to either party. 2. That a commission to
take testimony of such witness has not been issued . 3. That
according to the law of the State where the action or special proceeding
is pending, the deposition of a witness taken under such circumstances, and before such judge or justice , will be received in the action
or proceeding, he must issue a subpoena requiring the witness to
appear and testify before him at a specified time and place . Upon
the appearance of the witness , the judge or justice must cause his
testimony to be taken in writing, and must certify and transmit the
same to the court or judge before whom the action or proceeding is
pending, in such manner as the law of that State requires.
Descent and Distribution of Property. Property, both real
and personal, of an intestate passes to his heirs. A surviving wife
succeeds to one-half of the community property, i. e.. all property
acquired by husband or wife during the marriage, which does not
include property acquired by either husband or wife by gift, bequest.
devise or descent, which is separate property . Dower interest does
not exist. The separate estate is distributed as follows : If the
decedent leaves a surviving husband or wife and only one child, or
the lawful issue of one child, in equal shares to the surviving husband
or wife and child or issue of such child . If a surviving husband or
wife and more than one child living, or one child living 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 children
and to the lawful issue of any deceased child by right of representation.
But if there be no child living, the remainder goes to all the lineal
descendants, and if they are in the same degree of kindred to the
decedent they share equally, otherwise by right or representation.
If the decedent leaves no surviving husband or wife, the whole estate
goes to the issue-the issue of children taking by right of representation. If there is no issue the estate goes one-half to the surviving
husband or wife and the other half to the father and mother in equal
shares, or, if one be dead, to the survivor; if there be no father or
mother, then their one-half goes in equal shares to the brothers and
sisters or to their representatives. If there is no issue, or husband or
wife, the estate goes to the father and mother, or the survivor, or, if
both be dead, then in equal shares to the brothers and sisters, and
to the children of any deceased brother or sister by right of representation. If the decedent leaves a surviving husband or wife, and
neither issue, father, mother, brother, nor sister, the whole estate
goes to the surviving husband or wife. If the decedent leaves neither
issue, husband, wife, father, mother, brother, nor sister, the estate
must go to the next of kin in equal degree. These are the principal
provisions of the law of succession. Tenancy by the courtesy is not
known to our law. If the person dies testate, all property passes as
directed by the will.
Divorce. A vinculo matrimonll may be decreed by the superior
court for adultery, extreme cruelty, willful desertion, willful neglect
habitual intemperance, or conviction of felony. A marriage may be
annulled: 1. If the party seeking the annullment was under the
age of legal consent, and the marriage was contracted without the
consent of parents or guardian. 2. If the former husband or wife
of either party was living and such marriage was in force. 3. If
either party was of unsound mind . 4. If the consent of either
party was obtained by fraud. 5. If consent was obtained by force.
6. If either party was physically incapable of entering the marriage
state.
Executions. May issue Immediately upon the entry of judgment.No right of stay exists except by order of the court in its discretion .
An execution may be issued at any time within five years after the
entry of the judgment, and after the lapse of five years the judgment
may be enforced or carried into execution by leave of court upon
motion, or by judgment for that purpose, founded upon supplemental
proceedings. Execution may issue against the property of a judgment debtor after his death, only if the judgment be for recovery of
real or personal property, or the enforcement of liens thereon. Real
property may be redeemed within one year, personal property not at
all.

1

1380

BANKING AND COMMERCIAL LAWS- CALIFORNIA

Exemptions. The following property is exempt from execution :
1. Chairs, tables, desks, and books, to the value of $ 200 . 2. Necessary household, table and kitchen furniture belonging to the judgment
debtor, including one sewing machine, stoves, stove-pipes and furniture, wearing apparel, beds, bedding and bedstead, hanging pictures.
oil paintings and drawings drawn or painted by any member of the
family, and family portraits, and their necessary frames, provisions
actually provided for individual or family use sufficient for three
months, and three cows and their sucking calves, four hogs with their
sucking pigs, and food for such cows and hogs for one month . one
plano, one shotgun, and one rille. 3. The farming utensils or implements of husbandry not exceeding in value the sum of $ 1,000 ; also
two oxen or two horses, or two mules, and their harness; one cart
or wagon, and food for such oxen, horses, or mules for one month ;
also all seed, grain, or vegetables, actually provided , reserved or on
hand for the purpose of planting or sowing at any time within the
ensuing six months, not exceeding in value the sum of $ 200, and
seventy-five bee hives, and one horse and vehicle belonging to any
same is necessary in his
crippled, and the
person who is maimed or or
implements of a mechanic or artisan
business. 4. The tools
necessary to carry on his trade; the notarial scal, records, and office
furniture of a notary public; the instruments and chest of a surgeon,
physician, surveyor, or dentist , necessary to the exercise of their
profession, with their professional libraries and necessary office furniture; the professional libraries of attorneys, judges, ministers of
the gospel, editors, school teachers and music teachers and their
necessary office furniture . also the musical instruments of music
teachers actually used by them in giving instructions ; and all the
indexes, abstracts, books, papers, maps, and office furniture of a
searcher of records necessary to be used in his profession; also the
typewriters or other mechanical contrivances employed for writing
in type actually used by the owner thereof for making his living ; also
one bicycle when the same is used by its owner for the purpose of
carrying on his regular business, or when the same is used for the
purpose of transporting the owner to and from his place of business.
5. The cabin or dwelling of a miner not exceeding in value the sum
of $500; also his sluices, pipes, hose, windlass, derrick, cars, pumps,
tools, implements, and appliances necessary for carrying on any
in value the aggregate sum of $ 500;
mining operations, not exceedingwith
their harness, and food for same
and two horses, mules, or oxen,
for one month, when necessary to be used in any whim, windlass,
derrick, car, pump, or hoisting gear, and also his mining claim, actually worked by him, not exceeding in value the sum of $ 1,000. 6 .
Two horses, two oxen, or two mules, and their harness, and one cart
or wagon, one dray or truck, one coupe, one hack or carriage for one
or two horses , by the use of which a cartman, truckman, huckster,
peddler, hackman, teamster, or other laborer habitually earns his
living, and one horse with vehicle and harness, or other equipments
used by a physician, surgeon, constable, or minister of the gospel in
the legitimate practice of his profession or7.business, with food for
One fishing boat and
such oxen, horses, or mules for one month.
net, not exceeding the total value $500, the property of any fisherman
by the lawful use of which he earns a livelihood . 8. Poultry, not
exceeding in value $75. 9. Seamen's and seagoing fishermen's
wages and earnings not exceeding $ 100 . 10. The earnings of the
judgment debtor for his personal services rendered at any time
within thirty days next preceding the levy of execution or attachment,
where it appears by the debtor's affidavit or otherwise, that such
earnings are necessary for the use of his family residing in this State
supported in whole or in part by his labor; but where debts are
incurred by any such person, or his wife or family for the common
necessaries of life, or have been incurred at a time when the debtor
had no family residing in this State, supported in whole or in part
by his labor, the one-half of such earnings above mentioned are
garnishment, or attachment to
nevertheless subject to .execution,
satisfy debts so incurred 11. The shares held by a member of a
homestead association duly incorporated, not exceeding in value
$ 1,000, if the person holding the shares is not the owner of a homestead under the laws of this State. 12. All the nautical instruments
or seaman of any steamer
and wearing apparel of any master, officer,
or other vessel. 13. All fire engines, hook and ladders, with carts,
trucks, carriages, hose, buckets, Implements, and apparatus thereunto
or
appertaining; and all furniture and uniforms of any fire14.company
All arms,
department organized under any law of this State.
uniforms, and accoutrements required by law to be kept by any person,
and also one gun to be selected by the debtor. 15. All court houses,
jails, and town, county, and State buildings; all public buildings,
grounds, places, etc. 16. All material purchased for use in the
construction, alteration, etc., of any building, mining claim, etc.
17. All machinery, tools, and implements necessary in and for boring,
sinking, putting down, and constructing surface or artesian wells;
also the engines necessary for operating such machinery, implements,
tools, etc.; also all trucks necessary for the transportation of such
machinery, tools, implements, engines, etc.. to the value of $ 1,000.
18. All moneys, benefits, privileges, or Immunities accruing, or in
debtor,
life insurance on the life of the
any manner growing out of any do
not exceed $ 500. 19. Shares of
If the annual premiums paid
of $ 1,000 .
stock In any building and loan association to the valueNo
article.
20. Pensions from the United States Government.
however, or species of property mentioned in this section , is exempt
from execution issued upon a judgment recovered for its price or
upon a judgment of foreclosure of a mortgage thereon . (For Homestead Exemptions, see Homestead .)
Foreign Corporations. Every foreign corporation doing or
about to do business in this State must file a certified copy of its
articles of incorporation, or of a legislative act creating it, with the
Secretary of State, and a certified copy thereof duly certified by the
Secretary of this State must be filed with the County Clerk of the
County where its principal place of business is located. Every foreign, 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
obtained through fraud is voidable. Consent is deemed to have
been obtained through fraud only when it would not have been given
had such cause not existed . Actual fraud consists in the suggestion
as a fact of that which is not true, the positive assertion of that which
is not true in a manner not warranted by the information of the person
making it though he belleves it to be true, the suppression of that
which is true by one having knowledge of it, and promises made without any intention of performing, or 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.
Garnishment. Upon receiving Instruction in writing from the
plaintiff or his attorney that any person has in his possession , or under
his control, any credits or other personal property belonging to the
defendant or is owing any debt to the defendant, the sheriff must
serve upon such person a copy of the writ and a notice that such
credits, or other property or debts, as the case may be, are attached
#pursuance of such writ. All persons having any such property

at the time of serving of such writ, unless it is delivered up or transferred or paid to the sheriff, shall be liable to the amount of such
credits, property, or debts, until the attachment be discharged, or
any Judgment by him recovered be satisfied .
Homestead. The homestead consists in the interest of the
claimant, divided or undivided, in the dwelling house in which the
claimant resides, and in the land on which the same is situated,
selected, if the claimant be married, from community property, or
the separate property of the husband, or, with the consent of the
wife from her separate property. When the claimant is not married .
but is the head of a family, the homestead may be selected from any
of his or her separate property . The homestead can not be selected
from the separate property of the wife without her consent, shown
by her making or joining the declaration of homestead . The homestead is exempt from execution or forced sale, except in satisfaction
of judgments obtained : 1. Before the declaration of homestead
was filed for record, and which constitutes liens upon the premises.
2. On debts secured by mechanics' contractors' , sub-contractors .
artisans ' , architects', builders', laborers ' of every class, materialmen's
or vendors' lens upon the premises. 3. On debts secured by
mortgages on the premises, executed and acknowledged by the husband and wife or by an unmarried claimant. 4. On debts secured
by mortgages on the premises, executed and recorded before the
declaration of homestead was filed for record . In cases not enumerated above, in which, after a judgment has been docketed against
the homestead claimant, and an execution for its enforcement levied
on the homestead, it may be shown by an appraisement applied for
to, and ordered by, the court, after proper proceedings, that the homestead exceeds in value the amount of homestead exemption. Then
steps may be taken, if it can be done without material injury to the
land, to divide the property and reach the excess, The homestead
of a married person can not be conveyed or encumbered unless the
Instrument by which it is conveyed or encumbered
is executed and
acknowledged by both husband and wife. Homesteads may be
selected and claimed : 1. If not exceeding $ 5,000 in value, by any
head of a family. 2. If not exceeding $ 1,000 in value, by another
person.
Husband and Wife. The husband is the head of the family.
He may choose any reasonable place or mode of living, and the wife
must conform thereto . In other respects their interests are separate.
Neither husband nor wife has any interest in the separate property
of the other, and either may enter into any engagement with the
other, or with any other person, respecting property, which either
might if unmarried. All property of either, owned by him or her
before marriage, and that acquired afterward by gift, bequest,
devise
or descent, is the separate property of such person. All other property acquired after marriage by either husband or wife or both, is
community property, but whenever any property is conveyed to a
married woman by an instrument in writing, the presumption is that
the title is thereby vested in her as her separate property. The
husband has the management and control of the community property, with absolute power of disposal other than testamentary, provided that he cannot make a gift of the same or convey the same
without valuable consideration, unless the wife consents in writing.
The community property is not liable for the contracts of the wife
made after marriage, unless secured by a pledge or mortgage thereof
executed by the husband. The separate property of the husband is
not liable for the debts of the wife contracted before marriage, and
the separate property of the wife is not liable for the debts of her husband, but is liable for her own debts contracted before or after marriage. A husband and wife may hold property as joint tenants,
tenants by cntireties, tenants in common, or as community property.
Interest. The legal rate of interest is 7 per cent and is due upon
Judgments after rendition and upon other obligations unless there
is an express contract in writing fixing a different rate. The parties
may agree on a higher rate of interest and on the compounding of
same, but personal property brokers may charge not to exceed 5 per
cent per month.
Judgments. ( See Actions .) Upon filing the judgment roll,
which is a record of the proceedings in the case, it must be docketed
by the clerk, whereupon it becomes a lien upon any real property of a
judgment debtor not exempt from execution in the county, which the
said judgment debtor owns at that time, or which he may thereafter
acquire. This lien continues for five years, unless the enforcement
of the judgment be stayed on appeal. A judgment may be revived ,
but it is barred by the act of limitation within five years, unless
revived by leave of court upon motion. It may also be revived by an
action upon the judgment. Judgment must first be satisfied out of
property of the judgment debtor which has been attached and in the
custody of the sheriff.
Liens. Mechanics, material-men, contractors, sub-contractors,
artisans, architects, persons supplying power, and laborers of every
class performing labor upon or furnishing material to be used in the
construction, alteration, or repair of any mining claim, building,
wharf, bridge, ditch, flume, aqueduct, tunnel. fence, machinery,
railroad, wagon road, or other structure, have liens upon the property upon which they have worked or furnished material, and any
person performing labor in a mining claim has a lien upon the same,
and the works owned and used by the owners for reducing the ores
from such mining claim, for the work or labor done. The common
payment of
carrier has a lien upon the luggage of a passenger for thellen
thereon.
his fare. One who sells real property has a vendor's
surveterinary
hire,
for
depositaries
property,
of
personal
Improvers
pasturing horses or stock,
gcons, livery stable keepers and persons
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 timber have a llen thereon
for the amount due for their personal services.
Every person performing work or labor in, with, about, or upon any
threshing machine or engine, horse-power, wagon, or other appllance
thereof, while engaged in threshing, has a lien thereon to the extent
of the value of his services, for ten days after ceasing work or labor.
provided , within that time, an action is brought to recover the amount
of the claim .
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 :
Within five years: (1) An action upon a judgment or decree of any
court of the United States, or of any State within Within
the United
fourStates
years:.
(2) An action for mesne profits of real property.
(1) An action upon any contract, obligation or liability founded upon
an instrument in writing, executed in this State. ( 2) An action to
recover a balance due upon a mutual open and current account or
upon an open book account. Within three years: (1) An action
upon a liability created
by statute, other than a penalty or forfeiture.
(2) An action for trespass upon real property. (3) An action for
taking, detaining or injuring any goods or chattels, including actions
for the specific recovery of personal property. (4) An action for
relief on the ground of fraud or mistake, the cause of action in such
case not to be deemed to have accrued until the discovery by the
aggrieved party of the facts constituting fraud or mistake: Within

BANKING AND COMMERCIAL LAWS - COLORADO

1381

two years: (1) An action upon a contract, obligation or liability of detention thereof, and that it has not been taken for a tax, assessnot founded upon an instrument of writing, or founded upon an ment or fine, or seized under an execution or attachment, or if so
instrument of writing executed out of the State. (2) An action seized that it is exempt; also the actual value of the property. Plainagainst a sheriff, coroner, or constable, upon a liability incurred by tiff 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 doing of an act in his official capacity, and in virtue of his office,
or by the omission of an official duty, including the non-payment of the value of the property, and retain the same, but in case he fails
money collected upon an execution; but this subdivision does not so to do the property is delivered to the plaintiff. The judgment in
apply to an action for an escape. Within one year; (1) An action such action is in the alternative for a return of the property or for
upon a statute for a penalty or forfeiture, when the action is given its value in case a delivery can not be had .
to an individual or to an individual and the State, except when the
Statute of Frauds. A will must be in writing, except a nuncupastatute imposing it prescribes a different limitation . (2) An action tive will. See Wills .) No estate in land will pass other than leases
upon a statute, or upon an undertaking in a criminal action, for a not to exceed one year, unless in writing . An agreement not to be
forfeiture or penalty to the people of this State. (3) An action for performed within a year from making it must be in writing; also a
libel, slander, assault, battery, false imprisonment, or seduction , or special promise to answer for the debt , defraud, or miscarriage of
for injury to or for the death of one caused by the wrongful act or another; also agreements made in consideration of marriage, other
neglect of another, or by a depositor against a bank for the payment than a mutual promise to marry. An agreement for the sale of
of a forged or raised check. (4) An action against a sheriff, or other goods and chattels or things in action at a price not less than $ 200 ,
officer, for the escape of a prisoner arrested or imprisoned on civil unless the buyer accept and receive part of the same, or any part of
process. (5) An action against a municipal corporation for damages the purchase money. An agreement authorizing or employing an
or injuries to property caused by a mob or riot. Within six months: agent or broker to purchase or sell real estate for compensation or for
(1) An action to recover property seized by tax collector. (2) To
commission. No evidence is admissible to charge a person upon
recover corporation stock sold for delinquent assessment. To actions a
as to the credit of another, unless the representabrought to recover money or other property deposited with any bank, representations
tions be in writing.
banker, trust company, or savings and loan society, there is no limiy Proceedings. When an execution is returned
Supplementar
tation. If when the cause of action accrues against a person, he is unsatisfied , the judgment
creditor can obtain an order requiring the
out of the State, the action may be commenced within the term herein judgment
debtor to appear and answer concerning his property before
limited, after his return to the State , and if, after the cause of action
by him, also , in case after the issuing
appointed
or
referee
judge
the
accrues, he departs from the State, the time of his absence is not part
that the judgment debtor has
of the time limited for the commencement of the action. And if the of an execution, upon proof by affidavit
property which he unjustly refuses to apply toward the satisfaction
person entitled to bring the action, be at the time the action accrued,
the judge may make the order, and instead thereof,
either a minor, insane , imprisoned for a term less than life, or a mar- of the judgment,
if it appear that the debtor is about to abscond, he may, by order of
ried woman, and her husband is a necessary party with her in com- the
judge, be arrested and required by him to give security for the
mencing such action, the time of such disability is not a part of the
time limited for the commencement of the action. No acknowledg- judgment, or that he will attend from time to time during the penof the proceedings, and that he will not in the meantime disdency
ment or promise is sufficient to take a case out of the operation of
the statute of limitations, unless the same is in writing, signed by pose of any portion of his property, and in default of security he may
the party to be charged . Part payment will not take the case out of be committed to prison.
the statute of limitations. Where a cause of action has arisen in
Taxes. On the last Monday of November of each year taxes become
another State, and would be barred by the statute of limitations of delinquent, except the last installment of the real property taxes, and
that State, an action cannot be maintained here. There is no limita- thereafter 15 per cent is added for delinquency; provided , that if they
tion upon actions to recover money or property with banks or trust be not paid before the last Monday in April next succeeding, 5 per
companies. (See Accounts .)
eent is added for delinquency . On the last Monday in April, of
each year, all the unpaid portion of the remaining one-half of the
Married Women. A married woman may sue or be sued , and may
taxes on all real property is delinquent, and thereafter 5 per cent is
prosecute or defend any action or proceeding as if unmarried . A
added for delinquency; and provided further, that the entire tax on
of
the
judgment
the
by
trader
married woman may become a sole she has resided for six months
any real property may be paid at the time the first installment as
superior court of the county in which
next preceding the application . The husband of the sole trader is above provided is due and payable; and provided further, that the
by her in the course of her sole taxes on all personal property, unsecured by real property, shall be
for any debts contracted
not liablebusiness
unless contracted upon his written consent. A
traders
due and payable immediately after the assessment of said personal
property is made.
and is
married woman may convey without consent of her husband,
not liable for the debts of her husband, but is liable for her own debts
Wills. Every person over the age of eighteen years, of sound
contracted before or after her marriage. She may contract as a mind, may, by last will , dispose of all his estate, real and personal.
femme sole so as to bind her separate property. The wife may make 1 A
married woman may dispose of all her separate estate by will without
a will of her separate property . The carnings of the wife are not the consent of her husband, and may alter or revoke the will in like
llable for the debts of her husband.
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
Mechanics' Liens. (See Liens .)
will must be in writing, and every will other than an holographic
Mortgages. Any interest in real property which is capable of being will and a nuncupative will, must be executed and attested as follows:
transferred may be mortgaged . A mortgage can be created , renewed,
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
or extended only by writing executed with the formalities required in
the case of a grant of real property. Every transfer of an interest In his name thereto. 2. The subscription must be made in the presence
to them
real property, other than in trust, made only as the security for the of the attesting witnesses, or acknowledged by the testator
performance of any act, is to be deemed a mortgage, and the fact that to have been made by him or by his authority. 3. The testator
the transfer was made subject to defeasance on a condition may, for must, at the time of subscribing or acknowledging the same, declare
the purpose of showing such transfer to be a mortgage, be proved to the attesting witnesses that the instrument is his will; and 4.
except as against the subsequent purchaser or encumbrancer for There must be two attesting witnesses, each of whom must sign his
value and without notice) although the fact does not appear by the name as a witness at the end of the will, at the testator's request,
terms of the instrument . A mortgage is a lien upon everything and in his presence and in the presence of each other. An holothat passes by a grant of the property. A mortgage does not entitle graphic will is one that is entirely written, dated , and signed by the
of a hand of the testator himself. it is subject to no other form , and may
of the property. The assignment
the mortgagee to the possessioncarries
with it the security. When a be made in or out of this State, and need not be witnessed. A witdebt secured by a mortgage
the mort,
paid
indebtedness
ness to a will should always write his name and residence . All
mortgage
the
or
is satisfied
mortgage
gagee must satisfy the mortgage of record under penalty . A devises or gifts to a subscribing witness are void unless there are two
other competent subscribing witnesses . No will made out of this
mortgagee may foreclose the right of redemption of the mortgagee.
State is valid as a will in this State, unless executed according tothe
Notes and Bills of Exchange. (See Bills and Notes.)
provisions of the code, except that a will made in a State or country
Pledge. (See Collaterals .)
in which the testator is domiciled at the time of his death, and valid
Powers of Attorney. An attorney in fact may be appointed for
as a will under the laws of such State or country is valid in this State
any purpose for which an agency can lawfully be created . Powers of
as to personal property .
attorney can only be conferred by an Instrument in writing subscribed
by
the
principal
the
which
conparticularly
must
specify
powers
ferred . If the instrument contains a power to convey or execute
SYNOPSIS OF
instruments affecting real property, it must be duly acknowledged
and must be recorded in the county within which the real property
to be conveyed or affected is situate. No such instrument which has
been so recorded is revoked by any act of the party by whom It was
THE LAWS OF COLORADO
executed, unless the instrument containing such revocation is also
acknowledged or proved , certified, and recorded in the same office
in which the instrument containing the power was recorded . When
RELATING TO
an attorney in fact executes an instrument transferring an estate
in real property, he must subscribe the name of his principal to it,
and his own name as attorney in fact.
BANKING AND COMMERCIAL USAGES
Probate Law. (See Administration of Estates, Claims against
Estates of deceased persons, Descent and Distribution .) The superior
court has jurisdiction of proceedings in probate, and such proceedings Prepared and Revised by Messrs . ROGERS , ELLIS & JOHNSON, Attorneys
must be instituted ( 1 ) In the county in which the decedent was a
at Law, Denver. (See Card in Attorneys' List .)
resident; (2) in the county in which he may have died, leaving
estate therein , he not being a resident of the State; (3) in the
Acknowledgments. When executed within this State, before any
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 appraise- judge, clerk, or the deputy clerk of any court of record , clerk, and
recorder
of any county, or his deputy, or notary public, with affixing
ment
is
required
of
the
executor
or
administ
within
three
rator
months . Upon the return of the inventor the court
either of official seal, or before any justice of the peace within
may set apart by
y
his county. When executed out of this State and within the United
for use of the surviving husband or wife, or of the minor children,
States, before the secretary of any such State or Territory, the clerk
all the property exempt from execution including any homestead
selected, providing the same was selected from the common prop- of any court of record, any notary public. or any commissioner of
deeds for any such foreign State or Territory appointed under the
erty
or
from
the
separate
property
of
the
person
selecting
or
joining in the selection of the same. If none has been selected, laws of this State, with affixing by either of official seal; before any
other officer authorized by the laws of any such State or Territory
the court must select, designate and set apart and cause to be recorded
a homestead for the use of the surviving husband or wife, or of the to take and certify such acknowledgment; provided, there shall be
minor children, or if there be no surviving husband or wife, then for affixed to the certificate of such officer, other than those above
the use of the minor children out of the common property, or if there enumerated, a certificate by the clerk of some court of record of the
county, city, or district wherein such officer resides , under the scal
be
no common
property, then out of the real estate belonging to the
decedent
. Propert
y so set apart is not subject to further admin- of such court, as to the official capacity, true signature, and authorIstration . If
upon the return of the inventory is appears that the ity of the person certifying such acknowledgment . When executed
out of the United States, before any judge, clerk, or deputy clerk,
value of the whole estate does not exceed $ 1,500, the court may set
of any court of record of any foreign kingdom, empire, republic,
apart
the whole
deceased
the
. of the estate for the use and support of the family of
state, principality, province, colony, island possession or bailiwick,
before the chief magistrate or other chief executive officer of any
Protest. (See Bills and Notes . )
province, colony, island possession or bailiwick, before the mayor
Replevin . There is no action of replevin in this State, but the or chief executive officer of any city, town, borough, county, or muniaction of claim and delivery substantially takes its place . The cipal corporation, having a seal, or before any ambassador, minister,
plaintiff in an action to recover the possession of personal property
consul, consular agent, charge d'affaires, commercial agent, or any vice
may at the time of issuing the summons, or at any time before answer,
consul, etc.. or any diplomatic, consular, or commercial agent or repreclaim the delivery of such property. An affidavit must be made by sentative, or deputy of any thereof, of the United States or any other
the plaintiff or by some one in his behalf showing that the plaintiff
government or country appointed to reside in the foreign country or
is the owner of the property, or entitled to its possession, that the
place where the acknowledgment is made, each and all certifying same
property is wrongfully detained by the defendant, the alleged cause
under his official seal. When executed out of the State, and within

1382

BANKING AND COMMERCIAL LAWS- COLORADO

any colony, island possession or bailiwick of the United States , 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, however, 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
surviving husband or widow, or next of kin of an intestate, if they
will accept or are not disqualified ; if no such relative appears within
twenty days after death of Intestate, administration 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 more 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
consent of the parties in the form prescribed by statute, and a judgment may be entered by the clerk of the District Court upon the
unding 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 excat is granted under proper
circumstances. (See Fraudulent Purchasers .)
Assignment. 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
other sums to become due to the assignor, are invalid uniess recorded
with the recorder of the county where 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, setting forth the amount and nature of the debt claimed , and
one or more of the following grounds of attachment : 1. That defendant is a non-resident. 2. A foreign corporation. 3. A corporation
whose chief office or business is out 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 State.
6. Has fraudulently conveyed, or (7) fraudulently concealed or removed or disposed of his property, or 8 ) and ( 9) is about to do either,
or has departed or is about to depart from this State, with the intention of having his effects removed from this State. 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 defendant,
to be paid for upon completion. 12. That the defendant fraudulently contracted the debt, or procured the money or property
of the plaintiff. In justice courts, the fact that the debt is for farm
products, house rent, household furniture and furnishing, fuel, groceries and provisions, clothing and wearing apparel for
the debtor
or his family, is additional ground for attachment. Garnishee process will issue in aid of attachment when money or property of the
debtor is found in possession of third persons.
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 directors 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 sald 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 savings 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,
one-half of which must be paid in cash before 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 associatlons shall be held individually responsible for debts, contracts, and
engagement of said association In double the amount of the par
value of the stock owned by them respectively. Any banker, bank
officer, or employer 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 imprisoument in the penitentiary for not less than one year nor more than
ten years, and in addition shall be individually responsible for the
property received . Fallure 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 property, includIng its own stock, when received as collateral security or in the col
lection of debts. No director may borrow money in excess of 10
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. Ail 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 deйciency . On fallure of bank 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.
Bills 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 indebtedness, 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 reserve
by the
statue of limitations. Mortgages of stocks of goods which
possession and power of sale to mortgagor, 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 possession
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 contain an unconditional order or promise to pay to order, or to bearer,
a certain 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, and in case of non-payment, 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 instrument 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 by the corporation or by the
officer.
For one to be a holder in due course the instrument must
be complete and regular, and taken in good faith for value before
overdue, and without notice of any infirmity in the instrument
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 instrument; that he has a good title, and that he has no knowledge of any invalidity. An unqualified indorser warrants the instrument valid and subsisting . One indorsing an instrument negotlable by delivery is liable as indorser. Except when excused,
presentment for payment, or acceptance, on the day whenPresentdue is
necessary to charge drawer or indorser of an instrument.
ment 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 dishonor. Protest is required only in case of dishonored bills appearing on their face to be foreign. It is optional in case of other negotiable instruments. Bills drawn and payable within this State are
inland; others are foreign . Parties secondarily liable are discharged
by extension of time of payment. Payment by a party secondarily
liable, unless an accommodation party, does not discharge the instrument, but he may again negotiate it. Acceptance must be in writing . If written on a paper other than a bill, whether before or after
the bill is drawn, it does not bind acceptor except in favor of a person
taking the bill for value on the faith thereof. A qualified acceptance
discharges drawer and indorser unless they assent. Assent is presumed ,
after notice, unless they dissent. Holder can refuse to receive a
qualified acceptance .
No presentment for payment is necessary
after non-acceptance . A note drawn to maker's order is not complete unless 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 nec
essary 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. Unacknowledged deeds are deemed notice from
the date of filing but they can not be read in evidence unless subsequently acknowledged or proved. (See Acknowledgments ; Husband and Wife .)
Corporations. Three or more persons may form a corporatlon 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 of directors (not less than three or more than thirteen) , and
names of those to manage the corporation for the first year, the place
where principal office is to be kept, and counties in which its business is
to be carried on. If part of the company'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 thousand 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 encumberance without
such consent is absolutely vold. Cumulative method of balloting

BANKING AND COMMERCIAL LAWS- COLORADO

1383

for directors is permitted. Stockholders are liable for corporate fessional man up to $300; one bicycle and one sewing machine.
debts to the amount unpaid upon the stock, except that stockholdPersons not the heads of families are entitled to tools, working animals ,
and stock in trade, not exceeding $300 in value . When debtor
ers in banks, saving banks, trust, deposit, and security assoclatlons are individually responsible in double the amount of the par Is head of family, or wife of head of family, 60 per cent of wages
value of their stock. When the stock becomes fully paid up, a cerdue at time of levy, under execution, attachment, or garnishment,
tificate to that effect should be filed . The directors are required
is exempt, when such family resides in the State and is dependant.
annually, and within sixty days from January 1st, to file a report wholly or partially upon such earnings for support. If such wages
stating the amount of the capital stock, the proportion actually paid do not exceed $ 5 per week at the time of levy, they are entirely
in, and the amount of existing debts, together with many other exempt.
particulars. A failure to file such report makes all the directors or
Fraud. Parties to any fraudulent sale of any lands, goods or
trustees of the company jointly and severally liable for all the debts
chattels, or who conceal, secrete, remove or dispose of any goods
of the company contracted during the year next preceding the time
or are parties to any bond, suit, judgment, or exeor
chattels,
when such report should have been filed , and until such report shall
cution, contract
or conveyance had made, or contrived with
be made and filed . No meetings of the board of directors can be
to deceive and defraud, or defeat, hinder, or delay creditors ;
held outside the State unless so provided by the Articles of Incor- Intent
goods on credit under
are criminally liable. One who purchases
poration. Corporations may be dissolved by a two-thirds vote of an
assumed or fictitious name with intent to defraud the seller;
the entire stock. A corporation under the laws of Colorado, may
or having purchased goods on credit shall, with intent to defraud
called
of the stockholders,
extend its charter by special meeting
the seller, sell, hypothecate, or otherwise dispose of them out of the
by 10 per cent of the entire capital stock. Corporate life shall be
usual course of business, or secrete himself, or abscond, shall be
renewed for entire term, not exceeding twenty years. Foreign
corporations doing business in this State are not allowed a longer guilty of a misdemeanor.
term of corporate existence than domestic corporations of like charFrauds, Statute of. The following must be in writing : Conacter, but must file renewal certificates and pay fees therefor in the tracts for leasing of land for period longer than one year or for
same manner as domestic corporations, provided that such renewal the
sale of lands, or any interest in lands; every agreement which
term
the
beyond
corporation
foreign
the
of
life
the
must not extend
its terms is not to be performed within one year; every special
fixed by the State where it was organized . No foreign corporation by
promise to answer for the debt, default or miscarriage of another;
shall have or exercise any corporate powers or hold or acquire any every
agreement, promise, or undertaking made upon consideration
real or personal property, franchises, rights, or privileges, or be of marriage, except mutual promises to marry, and every contract
permitted to do any business or prosecute or defend any suit in this for
sale of any goods, chattels, or things in action, for the price
State, until it has led in the proper offices copy of its charter and of $the
50 or more, unless the buyer accepts and receives part of such
incorporation act, and designated an agent upon whom service of goods
or
evidence of some of them, or the buyer at the time
process can be made, and until all prescribed fees including license pays part the
of the purchase money . (See Sales of Personal Property.)
tax, shall have been paid, and until issuance of a certificate setting
Garnishment. (See Attachments .)
forth such full payment.
Husband and Wife retain their separate property, real, personal
In addition to all other fees and taxes, every corporation, whether
foreign or domestic, shall pay on or before the first day of May of
and mixed owned at marriage, and any such property which shall
each year, an annual State corporation license tax to the secretary
come to either of them by descent, devise, or bequest, or the gift
of any person, for their own separate use. Such property of the
of the State of Colorado, of two cents upon each one thousand dollars
wife is not liable for the husband's debts. Wife may carry on trade
of its capital stock.
Other provisions of the Revenue bill, approved March 22, 1902,
or business, sue and be sued, contract debts, and execute promissory
and this act regarding annual reports, assessment of tangible and notes, bonds, bills of exchange, and other instruments precisely as
may convey real estate without the husband joining in
intangible property, etc., too voluminous to be quoted, make it
if sole and
the deed . Any chattel mortgage upon, or sale of, the household
advisable that care should be exercised by both domestic and forgoods used by the family, and any conveyance of, or mortgage upon,
eign corporations operating in the State to acquaint themselves fully
with its requirements. (See Guaranty Companies; Trust Companies;
a homestead , and any assignment of future wages, or sums to become
by husband or wife residing with the
Transfer of Corporation Stock.)
due in the future, wheninmade
by that other. A married woman may
other, must be joined
Courts. Justices of the peace have jurisdiction in matters involvnor wife shall devise or bequeath
husband
neither
a
will,
but
make
ing less than $300, county courts in matters involving less than
more than half of his or her property away from the other without
$2,000, except in the administration of estates. The district court
executed after death of the testator
other,
of
the
in
writing
consent
the
is the court of general jurisdiction . The supreme court is the court
or of testatrix. Marriage revokes a will previously made. The
of final appeal, and also has some original jurisdiction, as in cases of
husband is liable for the debts and liabilities of the wife contracted
habeas corpus, mandamus and other remedial writs.
before marriage to the extent of the real and personal property
Days of Grace. Are abolished . (See Commercial Paper.)
or derive from the sale or rent
he may receive with or through her,expenses
of the family and the
of her lands, and no further. The
Depositions. The deposition of a witness out of the State shall
chargeable upon the property of both
are
education
children
of
the
be taken upon commission issued by the clerk of the court where
may be sued jointly
they
thereto
husband and wife, and in relation
the suit is pending, on the application of either party, on five days'
or severally. Either husband or wife living together can separately
previous notice to the other, which notice shall be accompanied
other "A Homeof
the
name
in
the
of
record
property
declare
by a copy of the interrogatories to be attached to the commission.
stead," by an entry of record over his or her signature. Neither can
It may be issued to a person agreed upon by the parties or to any judge
of the other,
signature
the
without
homestead
convey
nor
mortgage
or justice of the peace, or to a commissioner appointed by the goverand wife must acknowledge separate and apart from her husband .
nor of the State to take affidavits and depositions in other States
rate may
other
any
but
cent,
is
8
per
rate
legal
The
Interest.
and Territories, or to a notary public . The adverse party may le
be fixed by agreement. The same is allowed on overdue bonds,
and have attached to the commission such cross-interrogatories
bills, promissory notes, and judgments . County, town, and city
as he may desire. Parties may agree by written stipulation to
indebtwarrants, and other like evidences or certificates of municipal
take the deposition orally, or, upon proper cause shown, may obtain
edness bear 6 per cent interest from presentation. There are no
an order of court directing it to be so taken
laws.
usury
Descents and Distributions. The estate of an intestate descends
A transcript of judgment may be filed in the office
one-half to the surviving husband or wife, and the residue to the of Judgments.
the county clerk and recorder of any county in the State , and
surviving children and descendants of children, if any; if none,
such judgment becomes a lien upon all real property
then the whole descends to such surviving husband or wife . Except thereupon
as enumerated the estate of every intestate descends : 1. To his owned by the judgment debtor in that county . The llen holds for
six years from the date upon which filed (and successive transcripts
children surviving, and the descendants of his children who are dead,
may be filed) . An unsatisfied judgment should be revived every
the descendants collectively taking the share which their parents twenty
years. (See Executions.)
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,
Limitations. Actions for the recovery of land must be brought
then to the other; if no father or mother, then to his brothers and within twenty years after accrual of right. Actions for the recovery
sisters, and to descendants of brothers and sisters who are dead,
of lands actually occupied by another under a connected title deducthe descendants, collectively, taking the share of their immediate ible
of record or under tax or execution or other sale ordered by
ancestors in equal parts. 3. If none of the foregoing living, then to
must be brought within seven years after possession taken.
court
the grandfather, grandmother, uncles, aunts, and their descendants
is acquired after taking possession, statute runs from date
If
title
the descendants taking collectively the share of their immediate
acquiring title. Actual possession of land for seven years under
ancestors in equal parts. 4. If none of the relatives above enu- of
color of title with payment of all taxes for said period,
and
claim
merated be living, then to the nearest lineal ancestor and their descendconstitutes the possessor owner according to the purport of his paper
ants, the descendants collectively taking the share of their immediate
title. The same is true of vacant and unoccupied lands, unless someone
ancestors in equal parts All posthumous children or descendants
with a better paper title pays the taxes for one or more years during
of the intestate, inherit as if born in the lifetime of the intestate; such
term of seven years. Actions of debt founded upon contract,
and all children of the half blood and all legally adopted children
or implied; upon judgments of courts not courts of record;
express
shall inherit as children of the whole blood. Illegitenate children
for arrears of rent; of assumpsit--or case founded on any contract;
inherit if parents subsequently intermarry.
for waste and trepass on land and for replevin, must be begun within
Divorce. Causes for divorce are : 1. Impotency. 2 A hus- six years after the cause of action accrues. Actions against sheriffs
band or wife living. 3. Adultery . 4. Desertion for one year, and coroners, for liability incurred by them in their official capac5. Cruelty . 6. Fallure to support for one year. 7. Habitual ity, shall be brought within one year after the cause of action accrues,
drunkenness for one year. 8. Conviction of felony. Personal ser- also actions for assault and battery, false imprisonment, slander.
vice of summons must be made if defendant within the State. If and libel; also actions for penalties or forfeitures of penal statutes,
the State, service of summons and complaint by sheriff Bills of relief for fraud must be filed within three years after diswithout
of county in which defendant found, is required . Service may also covery, in case of a trust not cognizable by the courts of common
be made by publication in certain cases, Plaintiff must be present, law within five years. In actions accruing out of the State upon
and in case defendant defaults, the court appoints an attorney to contract, express or implied, or upon any sealed instrument in writing,
defend the action . Except in cases of adultery or extreme cruelty, or judgment or decree of any court, more than six years before the
where the offense was committed within this State, plaintiff must commencement of the action, the statute of limitations may be pleaded
have been a bona nde resident of the State for one year. Neither in bar of recovery. If a judgment has been rendered without this
to the divorce may marry within one year from the date of State more than three months before sult in this State, and is based
party
the
decree.
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
Dower. Dower and curtesy are abolished .
this latter provision has, however, been attacked , and is very doubtExecutions. Executions may be issued Immediately where no ful. (See 117 Fed ., 400.)
appeal is taken, and when placed in the hands of an officer become a
Married Women. (See Husband and Wife.)
llen 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
Mechanics' Liens. Mechanics, material-men, contractors, subCounty in the State. Executions may issue upon judgments at any contractors, builders, and all persons of every class performing labor
time within twenty years from the date of entry, but from and after upon, or furnishing materials used in the construction or repair
twenty years from the entry of judgment, it is considered satisfied
of any building, or any other structure or improvement upon land;
unless revived as provided by law. Debtor or legal representative also
who have rendered their professional, skilled service upon
has six months to redeem land from sale under execution. Judg- such all
structure, have a lien upon the property; also those who work or
ment creditor has three months after expiry of said six months.
furnish materials or machinery for the working of a mining claim
Exemptions. Homestead , consisting of town house and lot or or mineral deposit, shall have a similar lien. Liens rank in the
following order: 1. Laborers or mechanics working by the day
lots, or of any farm to the value of not to exceed $2.000, is exempt,
or piece, without furnishing material. 2. Sub-contractors and
when such homestead has been entered of record as such, property
and is
material-men, whose claims are either entirely or principally for
occupied by a householder, the head of a family. Personal
machinery or other fixtures. 3. Ali principal contractors.
exempt includes all wearing apparel of the debtor and his family materials,
Laborers are allowed one month, material men two months, and the
pictures, school books and library, beds and bedding, stoves, cookoriginal contractor three months after the completion of the structure,
ing utensils, and household furniture, not exceeding $ 100 ; provisions
within which to file claim of lien. Action to enforce such lien must be
and fuel for six months; tools, implements, or stock in trade, up to
commenced within six months after completion of the building
$200; one cow and calf, ten sheep and necessary food for six months;
working animals, up to $200 ; the library and implements of a pro- upon which it is claimed .

1384

BANKING AND COMMERCIAL LAWS - CONNECTICUT

Mortgages . Ordinary mortgages on reality are in common use;
also deeds of trust to a public trustee. If anyone 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 the public trustee
is named , the property is sold by him as provided in the deed, after
advertisement in a newspaper designated in the trust deed , and
such advertisement shall not be less than four weeks. Upon a sale
by the public trustee, a certificate of sale is issued. A subsequent
incumbrancer may redeem by paying the amount bid, and the sum
so paid shall be added to the amount of the subsequent incumbrance.
The grantor in the trust deed, or his assigns may redeem from sale
within six months. After six months, and within nine months,
a judgment creditor may redeem. After the expiration of the period of redemption, the public trustee executes a deed to the property
to the holder of the certificate of sale, which is assignable. Redemption from sales of mortgaged property the same as sales under executions. A deed of trust, pledge, or mortgage, given to secure a
debt, is 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 led 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
convicted and fined.
Powers of attorney for the conveyance
of Attorney.
of Powers
lands must
be acknowledged in the same manner as deeds, and
must be recorded in the same county wherein the real property to
be conveyed is situate.
Protest. (See Commercial Paper.)
Replevin. A writ of replevin may issue in any suit to recover
possession of personal property upon filing a bond in double the
value of the property, with affidavit of ownership or right to possession, wrongful detention 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 vold, as against creditors or subsequent purchasers in good faith,
unless accompanied by immediate delivery and 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 articles; and unless purchaser makes
full inquiry of the seller as to names and addresses of all creditors
of seller, and the amount due to each, and obtains an answer; and
notifies each creditor of the proposed sale, the cost price, and the
proposed selling price ; and unless the purchaser retains 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 .)
Taxes are a perpetual llen 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 February, and the residue on or before the last day
of July of the year following the one in which they are assessed.
Real estate sold for taxes redeemed any time within three years.
All mines and mining property of the class heretofore exempted by
the constitution of the State shall be assessed and taxed, and the
taxes levied and enforced by sale of the property taxed in default
of payment, as is provided by law in the case of other classes of
taxable real properties. Delinquent taxes carry interest at the rate
of 15 per cent per annum . Household goods to the value of $ 200
belonging to a head of a family are exempt.
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 seventeen years. For restrictions as to married persons.
(See Husband and Wife) . All wills, whether of reality 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 vold, 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 marriage
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 codiell, 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 AND 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 limitation of actions on accounts, see Limitations to Suits .)
Acknowledgments . (See Conveyances.)
Actions. There is but one form of civil action . Mesne process
in civil actions consists of a writ of summons or attachment , describing 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 complaint should contain a concise statement of
the facts constituting the cause of action and a demand for relief;
and legal and equitable rellef 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 incapacity, 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 administrators or executors, are usually made double the
estimated
of the personal property. Bonds of surety companies
authorizedvalue
to do business
in the State may be accepted. Where
the will waives the bond a nominal bond is required, usually in double
the amount of the debts of the testator. Deceased estates may be
settled as solvent or insolvent. Not less than six months are limited
for the presentation of claims against deceased estates, whether
solvent or insolvent. Such claims are presented to the administrator or executor if the estate is solvent, or to commissioners
appointed by the probate court if the estate is insolvent. Creditors
not inhabitants
of this State may exhibit their claims against any
estate which has not been represented insolvent, at any time within
one year after order of notice, and shall be entitled to payment only
out of the clear estate remaining after payment of claims exhibited
within time limited . Suit
must be brought within four months
from the time of receiving written notice from the administrator
or executor of a solvent estate of the disallowance of a claim . Twelve
months is the usual time allowed for 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 be 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 having jurisdiction of the subject matter, have
this agreement entered of record and obtain a rule of court that
the said parties shall submit to and be finally concluded by such
arbitration ; or the said parties may personally 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
pending 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 attachment shall be granted against the body unless
each cause of action in the complaint be such that execution may
be issued against the body of the defendant upon the judgment
founded thereon. A debtor committed to jail on civil process can
be released on taking poor debtors ' oath. The debtor will not be
released if his oath is overcome by rebutting evidence .
Assignments in Insolvency. Operation of this section suspended during continuance of U. S. Bankruptcy Act. Courts of
probate in some sections of State will now accept voluntary assignments in insolvency of corporations, on ground that bankruptcy
act does not provide for such 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 defenaant, or, if sufficient goods be not found, the person in tort actions.
Attachments may be granted upon all complaints containing a
money demand. Supplemental 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 attachment llen 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 Notes 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, conditioned that the title thereto shall remain in the vendor
after delivery, must be in writing, describing the property and all
conditions of sale, and acknowledged before proper authority, and
recorded in town where vendee resides. If not made as required,
they are held to be absolute sales, except as between the vendor
and vendee or their personal representatives. A crime to conceal
or convey personal property held on such conditional sale.
Contracts . Ordinary provisions of Statute of Frauds apply.
Courts of probate having furisdiction 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
Ilke manner, order such guardian to convey the interest of his ward
in any real estate which ought in equity to be conveyed to another
person. Contracts for the conveyance of lands or of any interest
therein, may be recorded in the records of the town in which such
lands are; and such record shall be notice to all the world of the
equitable interest thus created . Gaming or wagering contracts
are void . Contract of incapable person pending appointment of
conservator or of spendthrift pending appointment of overseer, vold
when selectmen have filed in town clerk's office certined 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

BANKING AND COMMERCIAL LAWS- CONNECTICUT
that it was so made until he restores such consideration. The Uniform Sales Act passed in 1907 covers contracts 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 subscribing witnesses . The word " seal" or the letters (L. S
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 superior court, court of common
or district court, justice of the peace, commissioner of the pleas,
school fund,
commisisoner 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 of this State, or any officer authorized to take the
acknowledgment of deeds in such State or Territory, and if in a
foreign country, before any consul of the United States, or notary
public, or justice of the peace in such foreign country. Conveyances
of real estate situated in this State, executed and acknowledged
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,
husband should
in the conveyance, if married before
April the
20, 1877. If thejoin
land conveyed
belongs to the husband, the wife need not join in the conveyance . No separate examination of a married woman is required in taking her acknowledgment. Conveyances, including leases for more than one year, to
be effectual against any other person than the grantor and his heirs
must be recorded on the town records of the town in which the land
lies.
Corporations. Corporations may be formed under the general
laws by three or more persons for the transaction of any lawful business except that of bank, savings bank, trust company, building
and loan association , insurance company, surety and indemnity
company, steam railroad or street railway company, telegraph company; 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 $25, 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 $25.
Stock may be paid for either in cash or property, but if in property, a majority of the directors must make and sign upon a record
book a statement 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 subscribers with number of
shares subscribed for, statement that the directors and officers have
been duly elected and by-laws adopted , names and addresses of
directors, the location 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 issued until it has been paid for in full. Receipts
for partial payments of stock may be issued by the treasurer. Certificates for fractional shares cannot be issued . The corporation
has a llen on capital stock owned by any person for debts due to
It from the stockholder. 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 may be wound up by voluntary agreement of all
stockholders, signed and acknowledged, directors acting as trustees
to wind up the business .
Receiver may be appointed on application of stockholders owning one-tenth of the stock, in case of fraud , mismanagement, or if
assets are in danger of waste by attachment, or when corporation
has abandoned its business.
Annual statements must be filed in the office of the secretary of
state and a certified copy thereof in the town clerk's office, either
in January or July, giving the names and addresses of the officers
and directors, amount of outstanding stock not paid for in full with
the amount due thereon, the location of the principal office in this
State with the name of the agent in charge on whom process may
be served. For fallure 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 deposit
of $ 15 for case In justice's court and $ 50 in any other court before
bringing suit. (See Insurance Companies, Injunctions, etc.)
Courts. Terms and Jurisdiction . Superior court holds one term
per year in each county for the trial of civil causes, and has jurisdiction in all law and equity cases exceeding $500, and exceeding
$100 in those counties where there are no courts of common pleas.
Court of common pleas in Hartford , Fairfield , New London , and
New Haven counties, has exclusive law and equity jurisdiction above
$100 and below $ 500, and concurrent jurisdiction with the superior
$ 1,000, and in Litchfield County has
court above $500 and up to 1.000
exclusive jurisdiction up to $
. Not less than four terms each
year are held in each of the counties named , and there are city courts
limited
In many of the cities, and a district court at Waterbury , withProba
te
civil jurisdiction ; also town courts in many of the towns.
courts have jurisdiction of the settlement of the estates of deceased ,
insolvent , and incompetent persons , and are established in a large
number of probate districts - one for each district . Justices of the
peace have civil jurisdiction up to $ 100. In New Haven and Hartford jurisdiction of justice of the peace has been transferred 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
of any court, justice of the peace, notary public, or commissioner
of the superior court, when witness lives out of the State, or more
than twenty miles from place of trial, is over sixty years of age and
unable to attend the trial, is going to sea, or out of the State, or by
age and infirmity is unable to travel to court, or is confined in jail.
Reasonable notice must be given to adverse party. Deponents must
be cautioned to speak the whole truth, and carefully examined .
They must subscribe their depositions and make oath before the
authority taking the same, who shall attest the same and certify
that the adverse party or his agent was present (If so) , or that he
was notified, and shall also certify the reason of taking such deposition, scal it up. direct It to the court where it is to be used, and
deliver it, if desired, to the party at whose request It was taken.
88

1385

Depositions may be taken in any other State or country by a
notary public, commissioner appointed by the governor of this State,
or by any magistrate having power to administer oaths, and they
may also be taken before a foreign minister, secretary of legation,
consul, or vice-consul appointed by the United States. if taken out
of the United States . A judge of the superior, common pleas, or
district court can issue a " commission " to take the deposition of
of this State, to be used in a cause pending
residing
a person
court.outThe superior court, upon petition, may allow
such
before
depositions to be taken to perpetuate testimony concerning that
which may thereafter be the subject of a suit. The person taking
depositions may compel attendance of witnesses by subpoena and
capias.
Descent and Distribution of Property in Intestate Estates.
(As to the share of a surviving husband or wife, see the title Husband
and Wife .) After the share of the surviving husband or wife, the
residue of the real or personal estate is distributed in equal proportions among the children and the legal representatives of any of
them who may be dead ( children who have received estate by advancement of the intestate in his lifetime being charged with the same in
the distribution) . If there be no children or legal representatives
thereof, such residue shall be distributed to the parent or parents,
then equally to the brothers and sisters of the intestate of the whole
blood, and those who legally represent them; and if there be no
such kindred, then equally to the brothers and sisters of the half
blood and those who legally represent them; and if none, then
equally to the next of kin in equal degree, kindred of the whole blood
to take in preference to kindred of the half blood, in equal degree,
and no representatives to be admitted among collaterals after the
representatives of brothers and sisters.
Divorce. Divorces are granted by the superior court exclusively,
and for the following causes, viz.: Adultery, fraudulent contract,
willful desertion for three years, with total neglect of duty ; seven
years' absence during all which period the absent party has not been
heard from; habitual Intemperance; intolerable cruelty ; sentence to
imprisonment for life, or any infamous crime involving a violation
of conjugal duty, and punishable by imprisonment in the State
prison. Uncontested divorce cases cannot be heard until ninety
days from the return day. The plaintiff must have continuously
resided in the State three years next before date of the complaint,
unless the cause arose subsequently to removal into this State, or
unless defendant has resided in the State and has been personally
served with the process, or unless the alleged cause is habitual intemperance or intolerable cruelty, and the plaintiff was domiciled in
this State at the time of the marriage, and before bringing the complaint has returned to this State with the intention of permanently
remaining. Custody of the children may be assigned by the court to
either party, and alimony, not exceeding one-third the husband's
estate, may be assigned to the wife, and the court has power to order
alimony pendente lite, to be paid to the wife upon such terms and
conditions as it may find advisable. Marriages void for any cause
may be declared void and a nullity by the superior court.
Dower. (See Husband and Wife .)
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 examined 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 domestic 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 any one person having wife or family, two tons of
coal, specified amounts of food-stuffs; the horse of any physician
or surgeon not exceeding $ 200 in value, and his saddle, bridle, harness, and buggy, also his bicycle; one boat owned by one person,
with rigging, tackle, etc., not exceeding $200 in value, used for planting or taking oysters or clams or taking shad ; one sewing machine
being property of any one person using it, or having a family; one
pew being property of any person having family who ordinarily occupy it, and lots in any burying ground; and all benefits allowed by any association of persons in this State toward the
support of its members, incapacitated 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 prevent their attachment when earned unless made to secure
a bona fide debt, due at the date of such assignment, the amount
of which shall be stated therein as nearly as possible, nor unless
the term for which they are assigned , shall be definitely limited in
the assignment, nor unless recorded before such attachment in the
town clerk's office in the town where the assignor resides, or if he
resides without the State, In the town where the employer resides , and
a copy left with the employer. (See also Exemptions.)
Foreign Corporations. Every foreign corporation, except insurance 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 investments) ,
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 such 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 outstanding against the corporation in this State. Such
written appointment shall be acknowledged before some officer

1386

BANKING AND COMMERCIAL LAWS--CONNECTICUT

authorized to take acknowledgments of deeds and shall be filed in
the office of said secretary, and copies certified by him shall be suffcient evidence of such appointment and agreement. Service upon
said attorney shall be sufficient 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 of 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 certicate
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 corporation 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
shall report
with the provisions of this section, and the secretary
to the attorney-general every six months the names of all corporations
of this section, and
which have failed to comply with the provisions due
under this secthe attorney-general shall collect all forfeitures
tion. Every corporation whose officers shall fail to comply with
the requirements of this section shall forfeit to the State $ 100
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 rendered 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 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
time in It
this
same
at the
action
Statenobetween
thethat
difference
same cause
of action.
makes
on the pending
judgtheparties
ment 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.
Garnishment. (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 the 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 endorsement or otherwise,
debenture bonds secured by loans upon real estate to an amount exceeding ten times the amount of the capital stock and surplus
actually paid in, in cash, of said corporation or company. Guarantee
companies 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 marriage or acquired after the marriage, except as to the share
of the survivor in the property of the other as hereinafter scated.
Wife married subsequent to April 19 , 1877,
may hold and convey
real estate separate from her husband. Separate earnings of the
wife are her sole property. On the death of the husband or wife
the survivor shall be entitled to the use for life of one-third in value
of all the property, real or personal, owned by the other at the time
of his or her decease, after the payment of all debts and charges
allowed against the estate. The right to such third can not be defeated
by will. Where there is no will the survivor shall take such third
absolutely, and if there are no children, shall take 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
untildissolved
the sitting
of such court
its further
order therein,
courtand
judge
temunless
sooner
. Superior
may dissolve
porary injunction granted by other court. All facts stated in appliPlaintiff
must
give
cation for injunction must be verified by oath.
bond with satisfactory surety, to answer all damages in case of failure
to prosecute to effect, before temporary injunction can be issued,
unless the court shall be of opinion that temporary injunction ought
to issue without bond . Injunctions may be granted forthwith, if
the circumstances of the case demand it; or the court or judge may
cause immediate notice of the application to be given to the adverse
party, that he may show cause why such injunction should not be
granted; and it shall be sufficient, on such application for a temporary injunction, to present to the court or judge the original complaint 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 the court 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 affecte
by the granting of any temporary or permanent injunction, may
appear and be heard with regard to granting or dissolving the same.

When in any action a temporary injunction has been granted , and
upon final hearing judgment shall be rendered adverse to the continuance of such injunction, either party may apply to the court rendering
such judgment, representing that he is desirous of taking the case
to the supreme court of errors, and praying that said temporary
injunction may be continued until the final decision therein ; and
unless said court shall be of opinion that great and irreparable injury
will be done by the further continuance of said injunction, or that
said application is made for delay and not in good faith, it shall
be the duty of the court to continue said injunction until a final
decision be rendered in the supreme court of errors. When in any
action judgment shall be 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 be granted for similar
reasons. The court in which such case is pending may, however,
If in its opinion the cause of justice shall so require, dissolve said
temporary injunction or remove the stay of sald permanent injunction while said cause is so pending in the supreme court of errors .
Insolvency. Suspended except as to voluntary assignments in
Insolvency 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
becomes payable. Any person who shall loan money upon a note
secured by mortgage on personal property, in which the sum of
moncy 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 per cent interest, but are not liens, and execution 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 consignee 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 predicated and within four months after such judgment was
rendered, it shall hold from the date of such attachment. Such
llen 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 llen 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
Judgments.)
Limitations to Suits. Open accounts and contracts not under
seal, six years; contracts under seal and promissory notes not negotiable, seventeen years. Usual exceptions in favor of married women,
minors, lunatics, and those imprisoned . The time during which
the party against whom there may be such cause of action shall be
without the State shall be excluded from the computation. Title
to real estate by adverse possession may be gained in fifteen years.
Limited Partnerships . Such partnerships (except banking and
insurance) shall consist of one or more partners, jointly and severally
responsible, as in ordinary cases, to be called general partners ; and
one or more partners, furnishing capitai 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 acknowledgment of deeds, a certificate stating the company name and names
and residences of all the partners, designating which are general
and which are special partners, and which of the general partners
are authorized to transact 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 partnership is to commence and
terminate : nor until such certificate, and also a certificate of the
amount actually paid in by each special partner, signed and sworn
to by such of the general partners as are authorized to transact
the partnership business, shall be filed and recorded in the office of
the town clerk of the town where the principal business of the partnership is to be carried on ; and a copy of such certificate shall
be prima facie evidence of the matters therein contained ; and the
partnership shall be responsible only for the acts of the general partners designated as specially authorized as aforesaid ; and copies of
said certificates 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 partnership 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 renewed partnership is to commence and terminate, signed by the partners thereto,
and specifying which are general and which are special partners.
If the requirements concerning original certificate are not complied
with, or false certificate be made, all special partners shall be liable
as general partners. All advancements to the capital stock by the
special partners shall be in cash and no part of the capital furnished
by them shall be withdrawn, 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. (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 be executed,
acknowledged, and recorded as mortgages of land, and can only be

BANKING AND COMMERCIAL LAWS - DELAWARE
made of the following described personal property-with or without
the real estate in which the same is situated or used- namely:
machinery, engines, or implements situated and used in any manufacturing or mechanical establishment; machinery, engines, implements, cases, types, cuts, or plates situated and used in any printing, publishing, or engraving establishment; household furniture in a
dwelling house used by the owner therein in housekeeping ; hay
and tobacco in the leaf in any building , Piano, organ, melodeon, and
any musical instrument used by an orchestra or band . Brick burned
or unburned . In any kiln or brickyard . Hotel keepers may mortgage the furniture. fixtures, and other personal chattels contained
and used in the hotels occupied by them or employed in connection
therewith. Chattel mortgages are foreclosed by sale under order
of court. In all chattel mortgages 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 therefrom.
Notaries Public hold office for two years from first day of February of year in which commissioned, unless commission is sooner
revoked by governor. May exercise their function at any place in
State. May take acknowledgments, administer oath, take deposition,
subpoena witnesses to give deposition . The authority and official
acts of any notary may be certined 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. Negotiable Instruments Act
now in force.
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. (See end of State Banks and Trust Companies.)
Probate Law. (See Administration of Estates, Appeals, Assignments and Insolvency , Collateral Inheritance Tax. Courts. Descent
and Distribution of Property, Husband and Wife, and Wills .)
Protest. (See Notes and Bills of Exchange .)
Records. Warranty, mortgage, quitclaim deeds must be recorded
In office of town clerk in town where land lies, also assignments of
mortgage, conditional bills of sale. chattel mortgages, assignments
of future earnings. Certificate of trade-mark to be filed for record
in office of secretary of State. Certificate of unsatisfied judgment
to be filed for record in town clerk's office . (See Conveyances, Insurance Companies, Limited Partnerships, Judgments, etc.)
Redemption. (See Mortgages .)
Replevy. Replevin lies for goods wrongfully detained , in which
the plaintiff has a general or special property with right to immediate
possession. A writ of replevin can not issue except upon an affidavit
in which the afflant 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 .
Sales. Uniform Sales Act passed in 1907.
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 hearing, or by leaving an attested copy in the defendant's hands
or at his usual place of abode; In case of a non-resident, the several
courts, other than courts of probate, and the judges, clerks, and
assistant clerks thereof, or any county commissioner, in turn time
or in vacation, may, except where it is otherwise specially provided
by law, make such orders as may be deemed reasonable, in regard
to the notice which shall be given of the institution or pendency
of all complaints, writs of error and appeal from probate, which
may be brought to or pending in any court, when the adverse party,
or any person so interested therein, that they ought to be made
parties thereto, reside out of the State, or when the names or residences of any such persons in interest are unknown to the party
Instituting the proceeding : and such notice having been given and
proved shall be deemed sufficient service and notice.
State Banks and Trust Companies. A reserve fund of 15 per
cent of aggregate of deposits must be held and maintained in the
banking office, of which 4-15 must be gold and silver coin, demand
obligations, or United States or national bank currency. The remainder of sald reserve fund may consist of balances subject to demand
draft with reserve agents, which are members of the clearing house
associations of New York, Boston Philadelphia. Chicago, or Albany;
or national banks, state banks, or trust companies, located in Bridgeport, New Haven, or Hartford, and of railroad bonds which are legal
investments for savings banks. No new loans or discounts may
be made when the reserve is below 15 per cent. Bank commissioners
may apply for appointment of a receiver when the reserve falls below
15 per cent after thirty days' notice.
No one person, corporation or firm may borrow more than 10
per cent of the amount of the capital stock paid in and surplus undivided profits combined , of any state bank or trust company. This
does not apply to collateral loans. Penalty of $3,000 for violation
of this law. Paper of executive officers or clerks may not be discounted . Loans to parties outside the State can only be made when
the loans and discounts in the aggregate amount to one-half of the
capital stock.
Books of a bank may be examined by stockholders under certain
conditions .
Three-fourths of the directors must be residents of the State. No
director may be obligated to a bank or trust company in an amount
exceeding 3 per
cent of the capital actually paid in and surplus undivided profits combined . This does not apply to loans secured by
collateral.
Cashier's bond of $ 10,000.
At least five reports, verified by oath, must be made each year
to the bank commissioners, exhibiting in detall the resources and
receipt of
liabilities of the bank or trust company, ten days after
request therefor from the bank commissioners, which shall be published
In a newspaper in the county where the bank or the trust company
is located. Penalty of $10 for each day of delay in transmitting
report.
Words " bank," "trust," or " savings" may only be used by banks,
trust companies and building and loan associations incorporated by
the United States or by the general assembly, but this shall not apply
to firms or individuals doing business as private bankers or brokers
under their own names, who deposit with the State treasurer a bond
of $ 10,000, or acceptable securities of that amount for the protection
of customers from styling themselves bankers in the conduct of their
business. Banks and trust companies maintaining savings departments must invest deposits according to the laws of the State concerning investments of savings banks, and must make sworn statements to the bank commissioners on October 1st in each year and
oftener if required by the commissioners, of the amount of such
deposits and the securities in which they are invested .

1387

Suits. (See Actions.)
Taxes. Land may be sold for delinquent taxes after due advertising, only so much being sold as is necessary to pay taxes and costs.
Owner has one year in which to redeem, by paying the purchase
money, with 12 per cent interest. Bonds, notes, or other choses
in action, except bonds and notes secured by mortgage on real estate
situated in this State, may be exempted from all local taxation by
paying to the State a tax of 1 per cent on the face amount thereof
for five years, or at the option of the holder thereof for a greater
or less number of years at a proportionate rate. All property, in
excess of $ 10,000 in value, within the jurisdiction of this State,
whether belonging to inhabitants of this State or not, which shall
pass by will or by the intestate laws of this State, or by deed,
grant, sale, or gift made or intended to take effect in possession
or enjoyment after the death of the grantor, shall be subject to
a succession tax, as follows : Property passing to the parent or
parents, husband, wife, or lineal descendants, or legally adopted
child of the deceased person , shall be liable to a tax of one-half of
1 per centum of its value for the use of the State, and any such estate
or interest therein, which shall pass to collateral kindred or to strangers
to the blood, or to any corporation, voluntary association or society,
shall be liable to a tax of 3 per centum of its value.
Transfer of Corporation Stocks. (See Corporations.)
Trust Companies. (See State Banks and Trust Companies .)
Warehouse Receipts. Uniform Warehouse Receipts Act passeu
in 1907.
Wills. All persons of the age of eighteen years, and of sound
mind, may dispose of their estate (real or personal) by will . No
devise, except for public and charitable uses, or for the care of cemeteries or graves, shall be made to any persons but such as are at
the time of the death of the testator in being, or to their immediate
issue or descendants . Wills must be in writing, subscribed by the
testator, and attested by three witnesses, each of them subscribing
in his presence, but they will be effectual here if executed according
to the laws of the State or country where executed . If, after the
making of a will, the testator shall marry, or if a child is born to the
testator, and no provision is made in the will for such contingency ,
such marriage or birth shall operate as a revocation of such will.
A will or codicil is otherwise revoked by burning, canceling, tearing.
or obliterating it by the testator, or some person in his presence by
his direction, or by a later will or codicil. A devise or bequest to a
subscribing witness or to the husband or wife of a subscribing
witness, is void , unless the will is otherwise legally attested , or unless
the devisee or legatee be an heir to the testator. Wills are proved
and estates settled in the probate court in the district where the
deceased resided . Wills of non-residents owning property in this State
may be proved by filing exemplified copies thereof in district where
property is located . Such course should always be taken in order to
pass good title to real estate.
SYNOPSIS OF
THE LAWS OF DELAWARE
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by GEORGE M. JONES, Attorney at Law, Dover.
(See Card in Attorneys' List .)
Acknowledgment. (See Conveyances .)
Actions. Suit may be commenced by capias, summons, and
(where defendant is non-resident) by attachment of property. Summons in justice's court may be issued returnable in four days from
date of service, or may be made returnable forthwith, upon plaintiff filing an affidavit that there is danger of his losing the benefit
of his process by delay. In superior court the summons must be
served personally on debtor before court sits, or by leaving a copy
of the summons at his usual place of abode, in presence of some
white adult person, six days before court sits. Service by publication allowed in the court of chancery only.
Affidavits may be administered in the State by the chancellor,
any judge, justice of the peace. or notary public ; and out of the
State by any official duly authorized to take acknowledgments of
deeds, etc .; but before a notary public is preferable. The afflant
must sign the affidavit.
Assignments and Insolvency. There is a domestic insolvent
law providing for a full surrender and equal distribution of all property,
but it is very seldom used, and there is no provision in the act for
the discharge of the debtor upon his making an assignment. The
assignee must file a schedule of property assigned within thirty days,
and two appraisers are then appointed by the chancellor. Assignments must be for the benefit of all creditors alike.
Attachments. Domestic attachment may be issued against an
Inhabitant of this State, after a return to a summons or capias issued
ten days before the return thereof, of non est inventus, and proof
of cause of action ; or upon the filing of an affidavit " that the defendant is justly indebted to the plaintiff in a sum exceeding $ 50 , and
has absconded from the place of his usual abode, or gone out of the
State with intent to defraud his creditors, or to elude process, as
is believed . " The writ directs the attachment of property and
summons of garnishees. Attachment may be dissolved on entering
security to satisfy any judgment to the extent of the property attached
that may be recovered against the defendant. On return of attachment the court appoints three persons as auditors of the claims of
creditors; the creditor attaching is allowed a double share for his
diligence, not to exceed full amount of debt. Any creditor not duly
presenting his claim receives no share in the distribution. Plaintiff
Is not required to give security . Wages are exempt from attachment in New Castle County except for board or lodging . Foreign
attachment may be issued against any person not an inhabitant
of the State after a return of non est as in domestic attachment,
or upon affidavit being made "that the defendant resides out of the
State, and is justly indebted to the plaintiff in a sum exceeding $ 50 ."
Foreign attachment may also issue against a foreign corporation ,
but in this case the amount of the real debt must be particularly
specified in the affidavit, and must exceed $ 50. Unlike domestic
attachments the plaintiff in foreign attachments has the benefit of
his own discovery and does not share with other creditors. It is
similar to domestic attachment in all respects except as to appointment of auditors and distribution among creditors . The court or
any judge upon petition may investigate any allegation in affidavit,
except as to the amount of the debt, and dissolve the attachment
If sufficient ground be not shown. Foreign attachment is otherwise
dissolved by entering special ball.
Banks. There is no general banking act and but one State bank,
which was chartered by the legislature in 1807. There are no official
examinations and the bank is merely required to make a yearly
report of its condition to the governor of the State. Banking companies

1388

BANKING AND COMMERCIAL LAWS- DELAWARE

or where either of the parties was at that time insane. No divorce
can not be formed at present, as there has been no statutory provision
for so doing. The holders of stock are taxed at the rate of onefrom the bonds of matrimony shall be decreed by the court when
the cause assigned therefor in the petition occurred out of this State.
fourth of one per centum on the cash value of each share of capital
and the petitioner was a non-resident thereof at the time of its
stock. There have been recently several trust companies formed in
occurrence unless for the same or like cause such divorce would be
the State, either by special act before the 1897 constitution, and
allowed by the laws of the state or country in which it is alleged
by general corporation act since, which have been granted banking
to have occurred .
powers by special statute. Banks and trust companies are now subJect to inspection by insurance commissioner.
Executions are a lien upon personalty from the time the sheriff
received the writ, if actual levy be made within sixty days thereBills and Notes. Acceptance should be in writing on the bill.
All checks, notes, drafts, or bills, foreign or inland, payable without after. Priority of lien remains in force five years. Execution
may
be issued within five years after date of judgment. An execution
time or at sight, are due on presentment without grace.
a justice is a lien from time writ is received, if levy be made
Chattel Mortgages must be accompanied with an affidavit that from
within
thirty days and priority of writ remains for two years . Executhe mortgage is made for the bona fide purpose of securing a debt,
can not issue after three years without revival. Goods and
and not to defraud creditors, and if recorded within ten days from tion
chattels
of a tenant are liable to one year's rent in preference to
the acknowledgment thereof, is a valid lien for five years on personal the execution.
There is no redemption on property sold under
property, the possession of which may remain in the mortgagor.
execution or mortgage. In New Castle County wages for a month
Claims Against Estates of Deceased Persons are paid in the
of employes of corporations are preferred to the execution. Stay
following order: 1. Funeral expenses. 2. Bills for medicine, medof six months is granted in courts of record upon judgments recorded
ical attendance, nursing, and necessaries for last sickness of the for want of amdavit of defence, provided security be given within
deceased. 3. No more than one year's wages of servants in house
twenty days after judgment. In justice's courts defendant may have
either
and laborer on a farin. 4. Rent for not more than one year,
six months ' stay, upon pleading his freehold ; nine months' stay upon
growing due or in arrears. 3. Judgments and decrees in equity
giving security .
against deceased . 6. Recognizances, mortgages, and other obligaExemptions. No homestead law. Family pictures, bible, and
tions of record . 7. Obligations and contracts under seal. 8. Conlibrary: fot in burial ground and pew in church : all wearing apparel:
delivery of goods,
tracts under hand for the payment of money,
sewing machines in private families ; tools of trade not to exceed $ 50
wares or merchandise. 9. Other demands . Administration is
Kent, or $ 75 in New Castle County; and to the head of a family
granted : 1. To the person entitled to the residue. 2. To one or in
New Castle County $ 200 of personal property and in Kent County
more of the creditors. 3. To any suitable person, resident or non- in
only . No additional exemption
the value of $ 150, consisting of householdof goods
resident. Bond must be given for an amount double the
the exemption law extend and apply
deceased in Sussex . The provisions
the estate . Notice must be given of claims against
giving and securing to such
a
widow,
leaving
and
dying
to
a
person
,
record)
of
claims
(except
letters
of
within six months from granting
widow the same benent of exemption that her husband would have had
or executor or administrator is protected in paying debts of a lower if
Wages are exempt from execution attachment in New Casgrade. One year is allowed for settling the estate, and until the tleliving.
County except for board or lodging . Planos and organs leased
expiration of that time, he need not make distribution, nor is he or sold
contract exempt from execution process or distress
chargeable with interest on the assets in hand. He may be removed for rent,under
the lessor or vendor notifies the landlord in
upon sufficient cause . Letters granted in other states and produced writing ofprovided
thereof.
claim
the
under the seal of the officer or court granting the same, is competent
of
goods vold as to third parties, unless for a valuSale
Frauds.
State.
this
in
to
act
authority for him
able consideration and the possession thereof be actually delivered
Contracts are joint and several, unless otherwise expressed .
to the vendee. A promise to pay the debt, default, or miscarriage
Conveyances of Real Estate must be under seal (a scroll is
of another to the extent of $ 5 is binding if proved by the oath of the
sufficient) , and should be executed before one witness at least. Deed
promisce : for an amount between $5 and $ 25 must be proved by
may be acknowledged out of the State before any consul-general,
credible witness or some memorandum in writing signed by the
one
consul, or commercial agent of the United States, duly appointed person
to be charged therewith; for an amount exceeding $ 25 there
in any foreign country at the places of their respective official residence ;
be some memorandum or promise in writing signed by the
must
before the judge of any district or circuit court of the United States.
to be charged therewith.
or the chancellor or any judge of a court of record of any state, terri- party
Garnishment. All persons except public officers, attorneys, etc.,
tory, or country, or the mayor or chief officer of any city or borough,
and certified under the hand of such chancellor, judge, mayor, or are subject to summons as garnishees . Wages are not subject to
in New Castle County except for board or lodging .
garnishment
officer, and the seal of his office, court, city, or borough, by certificate
endorsed upon or annexed to the
deed; or such acknowledgment
Holidays, Legal. January 1st. February 12th . February 22d ,
or proof may be taken in any such court and certified under the hand
May 30th. July 4th, first Monday in September. Thanksgiving DayIf.
of the clerk or other officer of said court, and the seal of said court
and Christmas, and Saturday afternoon in New Castle County .
In like manner. In case of such certificate by a judge, the seal of legal holiday falls on Sunday the next day is observed . Negotiable
his court may be affixed to his certificate, or to a certificate of atfalling due on legal holiday is due and payable on the next
testation of the clerk or keeper of the seal. Such acknowledgment paper
preceding secular day ; if falling due on Saturday half-holiday. If
may also be taken by any commissioner of deeds for this State , or
not presented for payment before noon, is not due till the next succeedby a notary public of any state or territory . Wife must join in deed
ing secular day.
to, bar dower, and husband to bar curtesy . A deed by a corporaHomestead. There is no homestead law in Delaware.
tion may be executed and acknowledged by the president or other
Interest. Legal rate is 6 per cent. Any person who takes more
presiding
officer duly
by resolution
of the
directors,
trustees,
or other managers,
orauthorized
by the legally
constituted
attorney
of such
corfor the use or the loan of money shall forfeit and pay to any one suing
poration . Deeds must be recorded within three months after sealing
for the same a sum equal to the money loaned, one-half for the use
and delivery, to avall against creditors, mortgagee, or bona fide
of the State, and the other for the party suing.
purchasers, without notice.
Judgments of courts of record are liens upon all real estate of the
Corporations. General Corporation Act for all purposes other debtor in the county where judgment is entered from their date,
than banking . Each stockholder is individually liable for the amount but the lien may be extended into either or both the other counties .
of capital stock not paid in in proportion to the amount subscribed
Judgments can only be obtained in this State upon judgments in
by him . Corporations of other states may be sued in this State,
other states by suit, upon a certified copy of the record of said judgand the property of the same found here may be seized by attachment.
ment authenticated under the Act of Congress passed May 26 , 1790 .
Transcripts of judgments recovered before justices of the peace may
All foreign corporations must file with the secretary of state, statement of assets and liabilities, and the name of its authorized agent
be entered in the superior court and thus be made liens on real estate.
upon whom process may be served; must pay a State tax of $50,
Satisfaction must be entered within sixty days after payment.
and fees of secretary of state (this State tax is paid but once) must
Limitations. Contracts not under hand and book accounts three
file with the prothonotary of each county the name of authorized
years, bills and notes under hand six years. Judgments and specialagent upon whom process may be served.
tles are merely presumed to have been paid after the lapse of twenty
but this presumption may be overcome by proof to the conCosts. Non-resident plaintiffs may be required to give security years,
trary. All judgments must be renewed before January 1 , 1906.
for costs.
otherwise their lien will be lost. Thereafter judgments must be
Courts. Terms and Jurisdiction. The different courts of the
renewed within ten years. The statute does not begin to run in favor
State are as follows: Supreme court ; regular term at Dover third
of non-resident debtor until he come into the State, in such manner
Tuesday in June and January. Court of chancery and orphans'
that he may be served with process, and if a debtor remove after
court: regular terms, New Castle County, at Wilmington, on the the
cause of action has accrued , the time of his absence is not computed.
fourth Monday in March and second Monday In September: Kent
On recognizances of sheriffs' , administrators ' , or executors ' bonds,
Monday
in
County, at Dover, third Monday in March and third
within six years from date. Bond of guardian within three years
September: Sussex County, at Georgetown, second Monday in March from the determination of guardianship.
and first Monday in September. Superior court, and court of general
Women retain their real and personal property owned
sessions are held in New Castle County at Wilmington the first Mon- } at Married
marriage or received from any person other than the husband.
day in January, March, June, and November and third Monday In
May
receive
wages for their personal labor, and prosecute and defend
September, In Kent County at Dover, the first Monday in July and sults for preservation
and protection of their own property, as if
the third Monday in February, April, and October, and In Sussex unmarried,
and the rents, issues, and
of their separate estate
County the first Monday in February, April, and October and last are not controllable
the husband.
by
The widow is entitled
call
Monday in June in Georgetown . Oyer and terminer meets on
one-third part of all the lands and tenements whereof her husband
of judges. Jurisdiction - The superior court has Jurisdiction in all to
was
seized
at
any
time
during
her
marriage,
unless
she shall have
not
will
costs
$50,
than
less
for
be
brought
sult
if
but
cases,
elvil
relinquished such right, for and during the term of her natural life.
be recovered . Justice's jurisdiction . $ 200 .
If her husband die without Issue or the children of issue she takes a
Depositions. In any suit pending, the prothonotary, on appli- molety instead of a third part of the real estate. A married women
cation, enters a rule commission on the part of the applicant to any
of the age of twenty-one years and upward may dispose of her propcommissioner of the State or other person. The commission Issues
both real and personal, by will, without the written consent
on ten days' notice of interrogatories filed . Exceptions to interroga- erty,
of her husband, but subject to his right of courtesy. Two or more
tories must be led before the commission Issues, and are heard
witnesses are necessary for a will. ilusband and wife may testify
before a judge at chambers. Exceptions to the execution must be
all civil actions in which either or both are or may be parties to
Aled within two days after publication. If the commissioner employ in
the suit.
a clerk, add "The clerk by me employed in taking, writing, tranMortgages
Real Property are executed and acknowledged like
scribing, and engrossing the said depositions, having first duly taken other deeds . of
They become a lien from the time they are lodged
the oath assigned to the said commission according to the tenor with
the recorder. Upon foreclosure of same there is no redemption
thereof."
of property. A purchase money mortgage should be recorded within
Divorce. The superior court has sole cognizance for the following
thirty days to avail against a subsequent innocent holder.
Proof of Claims. The full individual names of plaintiffs and
causes: 1. A divorce from the bonds of matrimony shall be decreed
for adultery, desertion for three years, habitual drunkenness. impodefendants, together with style of doing business, must be stated;
tency of either party at the time of marriage, extreme cruelty, or or if a corporation, the laws of what state under which incorporated ,
conviction, either in or out of this State, after marriage, of a crime
One of the plaintiffs, if a partnership, or the treasurer or cashier
of a corporation , must make affidavit to the amount claimed, giving
by the laws of this State deemed felony, whether such crime shall
an itemized copy of the cause of action attached thereto. It is
be perpetrated before or after such marriage. 2. A divorce from the
bonds of matrimony, or from bed and board at the discretion of
advisable to have the affidavit made before a notary public, though
it may be made before others. (See Affidavit .)
the court shall be decreed for procurement of the marriage by fraud
for want of age, the husband being under the age of eighteen years
Protest. (See Bills and Notes .)
or the wife being under the age of sixteen years at the time of the
marriage and such marriage not being after those ages voluntarily
Replevin. The writ issues out of the superior court to obtain
ratibed ; or for willful neglect on the part of the husband for three
possession of goods unlawfully taken or unlawfully detained. No
years to provide for his wife the necessaries of life suitable to her
is required , but before the officer to whom it is directed
affidavit
condition. The same court can decree marriages null and vold
can execute it the plaintiff or some substantial person for him must
which are prohibited by law for consanguinity or affinity; or between
bond to such officer in a penalty of double the value of
into
enter
a white person and a negro or mulatto ; or where either of the parties
the sult with
the goods to be replevined , conditioned to prosecute
had, at the time of the marriage, another husband or wife living:
effect, etc. Defendant may give counter bond and retain the goods.

BANKING AND COMMERCIAL LAWS - DISTRICT OF COLUMBIA
Summons may be served on the defendant by stating the substance of it to him personally at any time before the return of the
writ, or by leaving a copy of it at his usual place of abode in the
presence of some adult person six days before the return thereof.
Against a corporation may be served on the president or head officer, if
residing in the State, and if not, on any officer, director, or manager
of the corporation. In chancery service may be had by publication
under order of the chancellor. From a justice service must be personal if forthwith, otherwise four days must intervene before hearing.
Taxes laid and imposed by the levy court of a county or by the
State for its own purposes, are a llen upon all the real estate of the
taxable upon whom they are imposed, for two years, and such lien
has preference to all other lens against him. General assessments
are made every four years.
Wills. Any person of the age of twenty-one years or upward,
of sound mind, may make a will as well of real as personal estate.
Every will must be in writing and signed by the testator, or by some
person subscribing the testator's name in his presence and by his
express direction, and attested and subscribed in his presence by
two or more credible witnesses. or it shall be void. A will
shall be proved before the register of the county in which
the testator resided at the time of his death . A nuncupative
will of personal estate not amounting to over $ 200 and pronounced
by the testator in his 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 of
Columbia, but within the United States, the acknowledgment may
be made before any judge of a court of record and of law, or any
chancellor of a State, any judge or justice of the supreme, circuit, or
territorial courts of the United States, or any justice of the peace or
notary public: Provided that the certificate of acknowledgment
aforesaid, made by any officer of a State or Territory, not having a
seal, shall be accompanied by a certificate of the register, clerk, or
other public officer that the officer taking said 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 or acting consular officer
of the United States as such consular officer is described 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 of
legation or consular officer or acting consular officer of the United
States, the official character of the person taking the acknowledgment
shall be certified 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 forms of actions are used except as
modified by statutes.
Administration . The probate court, a special term of the
supreme court of the District of Columbia, has exclusive jurisdiction
of the settlement of estates . A written petition stating the facts
In the case must be filled with the register of wills. This petition is
acted upon by a justice of the supreme court of the District, who sits
dally. All executors and administrators and guardians are required
to give bond with security to be approved by the court. The testator
may walve 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 personal estate. By act of Congress, certain trust companles incorporated thereunder may act as executor or administrator
their charters
without bond, and corporations having power under Creditors
may
may act as sureties in all cases where Individuals can.
be barred in thirteen months provided the required notice is properly
published . Probate court may order sale of real estate to pay debts,
in case personal assets are insufficient.
Affidavits. Affidavits for use in the District of Columbia should
be taken before a justice of the peace, notary public, judge of any
court of record, or a United States commissioner.
Aliens . Aliens may hold personal property in the District of
Columbia, and may acquire real estate by descent. Allen corporations
are prohibited from acquiring real estate. Corporations of which
over 50 per cent of the stock is or may be owned by persons or assoclations not citizens of United States can not acquire or own real
estate in District of Columbia.
Appeals. Appeals will lie from the municipal court to the supreme
court of the District of Columbia where more than $ 100 is involved,
and in actions for the recovery of possession of real estate. Appeals
may be taken from the supreme court of the District of Columbia to
the court of appeals of the District of Columbia. Appeals may be
taken from the court of appeals to the supreme court of the United
States in all cases involving $ 5,000, exclusive of costs, or where a
constitutional question or some treaty with a foreign power is involved .
Arrest. There is no imprisonment for debt in the District
Columbia. The court has the power to imprison for non-payment of
of
alimony in divorce cases.
Attachments may issue at Institution of suit or subsequently,
upon affidavit of plaintiff or his agent, supported by that of one or
more witnesses, showing the grounds of his claim and right to recover,
and that defendant is a non-resident, or evades service of process , or
is about to remove, assign, dispose of, or secrete property with intent
to hinder,
delay, and defraud creditors, or that the debt was fraudulently contracted . Creditor must give bond, with approved surety
or suretles, to be approved by the clerk, in twice the amount of his
claim for costs and damages if attachment is wrongfully sued out.
Bills and Notes. The common law of England relative to bills
and notes, except where changed by statute, governs all cases in which

1389

they are involved. A law similar to the New York Negotlable Instruments Law is now in force in this District. (See Legal Holidays and
Protest.)
Chattel Mortgages. No bill of sale or mortgage or deed of trust
to secure a debt of any personal chattels whereof the vendor, mortgagor, or donor shall remain in possession, is valid and effectual to
pass the title herein, except as between the parties to such instrument and as to other persons having actual notice of it, unless the
same be executed and acknowledged and within ten days from the
date of such acknowledgment recorded in the same manner as deeds
of real estate; and as to third persons not having notice of it, such
instrument shall be operative only from the time within sald ten
days when it is delivered to the recorder of deeds to be recorded .
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 prineither at public or private sale, and in such cases the
cipal of theatnote,
any such sale obtains a valid title to the collateral sold .
purchaser
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 several 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, administrators, 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 actioa , but he is entitled to recover,
as in actions ex delicto , against such of the defendants as shall be
shown by the evidence to be jointly indebted to him, or against one
only, if he alone is shown to be indebted to him, and judgment will
be rendered as if the others had not been joined in the sult. 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 banks of circulation
or discount, railroads and such other enterprise or business as is otherwise provided for. Such corporations may have a perpetual existence.
No such company is authorized to transact business until 10 per cent
of the capital stock shall 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 able to the
creditors of the company in which they are stockholders for the unpaid
amount due upon the shares of said stock held by them respectively,
for all debts and contracts made by such company, until the whole
amount of capital stock fixed and limited by such company shall have
been paid in, and a certiticate thereof shall have been made and
recorded. Every such company must annually, except insurance
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 persons 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 be 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 filling 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 certificate, provided that no fee shall
be less than $ 25.
Courts in session continuously throughout the year. Suits 'on
contracts, accompanied by suficient affidavit of right to recover,
result in Judgment in twenty days, exclusive of Sundays and legal
holidays, after day of service on defendant, unless defendant files an
affidavit setting forth facts which, if true, would in law constitute
a vaild 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
in the year ...., by me,. ..
of... witnesseth : That of......,
in consideration of (here Insert consideration) , 1, the said..
do grant unto (here insert grantee's
name), of.
all that (here describe the property) .
(Seal.)
Witness
and seal.
A deed
mustmy
be hand
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 civii
cause whether the case be at issue or not, may be taken under any of
the following conditions: 1. Where the witness lives beyond the
District of Columbia. 2. Where the witness is likely to go out of the
United States or out of the District and not return in time for the
trial. 3. Where the witness is infirm or aged , or for any reason the
party desiring his testimony fearhe 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 commissioner or clerk of any court of
the United States, or any examiner in chancery 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 :
Provided , 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
be stated as follows : 1. If an intestate leaves a child or children, or
descendant of such child or children, his property descends to such
child or children, or their descendants, subject only to the dower right
of the widow, if there be one. 2. If the estate descended to the
intestate on the part of the father or mother and there be no child or
the descendant of any child, then to the brothers and sisters and their
descendants. 3. If none, to the mother or father or the ancestors
of the intestate and their descendants of the blood of the mother or
father,
as the
the case
may or
be, wife
subject
the
widow'sgrandmother
dower. 4. orIfgrandfather,
none, then to
husband
andtotheir
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 helt, the lands shall escheat to the District of Columbia.
Personal Property : If a widow and no child or descendants, parent.
brother or sister or descendants, the widow shall have the whole;
if child or descendants, the widow shall have one-third only: If no

1390

BANKING AND COMMERCIAL LAWS-FLORIDA

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 relations 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 District of Columbia . (9) The husband on death of the wife is entitled
to all her personal property in possession without administration, but
administration is usually resorted to for protection of parties dealing
with the husband .
Divorce. Absolute divorces may be obtained in the District of
is a prior valld
Columbia for the following reasons : Where there
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 not exempt, and upon gold and silver coin, bank
notes or other money, bills, checks, promissory notes or bonds, or
certificates of stock in corporations owned by said debtor, and upon
money owned by him in the hands of the marshal or of the constable
charged with the execution of such writ, and also upon all legal leasehold and freehold estates of the debtor in land. Executions on judgments before Justices of the peace may be superseded , according to
and sufficient security being
the amount of the judgment, upon good
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 carnings 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 of
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 husband'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 unmarried . 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 conveyance. 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 circumstances, may be
adjudged guilty of a misdemeanor, and may be fined, or imprisoned,
by the court having jurisdiction.
Interest. The legal rate of interest in the District of Columbia is 6
per cent, and in any sult 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 .
Judgments. Every judgment is good and enforceable by an execution issued thereon for a period of twelve years from the date when an
execution might first have been issued thereon or from the date of the
last revival thereof by scire facias . Judgments of the municipal court
are not liens on real estate until recorded in the supreme court of the
District of Columbia.
Jurisdiction. (See Actions, Appeals, and Municipal Court. )
Legal Holidays. Legal holidays are January 1st. February 22d,
May 30th, July 4th, first Monday in September (Labor Day) , December 25th, or the following day when any of these dates fall on Sunday, and such day as may be appointed by the President of the
United States for fasting and prayer. Every Saturday is a legal half
holiday and notes falling due on that day are not protested until
Monday. Process is not issued or served by the marshal after 12
o'clock on Saturday.
Limitations. Fifteen years for recovery of lands, tenements or
hereditaments ; executor's or administrator's bond , five years; Instruments under seal, twelve years ; simple contracts and recovery of personal property and damages for its unlawful detention, three years;
statutory penalty or forfelture, libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or Imprisonment,
one year; all other actions three years . Usual exceptions in favor
of persons under disability. Acknowledgment to revive action on
debt must be in writing. Part payment will take debt out of statute.
Married Women. (See Husband and Wife.)
Mortgages. Mortgages are almost entirely supplanted by deeds
of trust, requiring no court proceedings to foreclose. Joining the wife
is necessary to bar dower.
Municipal Court . This court which takes the place of what was
formerly known as the Justice of the peace court has jurisdiction
to the amount of $500. This jurisdiction is exclusive when the
amount claimed for debt or damages or value of personal property

does not exceed $ 100 , and concurrent with the supreme court of the
District of Columbia when it exceeds $ 100 and not in excess of $500
with right of certiorari in cases of concurrent jurisdiction .
Partnerships. Limited partnerships for the transaction of any
mercantile, mechanical, or manufacturing business within the District
may be formed by any two or more persons, but the number of special
partners is limited to six. The special partners are not liable for
them
the debts of the partnership beyond the fund contributed bygeneral
to the capital. A certificate setting forth the firm name;
nature of the business to be conducted ; names of all the general
and special partners interested therein, distinguishing which are
general and which are special, and their respective places of residence; the amount of capital contributed by each special partner
which the partnership is
to the common stock; and the period
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
of the place where the bill is
seal; or by any respectableof resident
dishonored , in the presence two or more credible witnesses. Where
a foreign bill, appearing on its face to be such, is dishonored by nonacceptance, it must be duly protested for same; and where such a
bill which has not previously been dishonored by non-acceptance,
is dishonored by non-payment, it must be duly protested forWhere
same.
If it is not protested the drawer and indorsers are discharged.
a bill does not so appear to be a foreign bill, protest thereof in case
of dishonor is unnecessary. The protest must be annexed to the bill
or contain a copy thereof and must state the ( 1) time and place
for 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 scal, is prima facie evidence
of that fact. A copy of the record of any deed or other instrument
in writing not of a testamentary 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 said laws require to be admitted
to probate and record, by judicial decree, and of the decree of the
court admitting the same to probate and record, under 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 such deed , 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
property, real and personal. Penalty of 1 per cent per month for
default in payment. Taxes are payable in May of each year. New
assessments are made every three years, for real estate (unless improvements are put on) and every year for personal property by a permanent Board of Assessors.
Trust Companies. Trust companies can be organized under the
general provisions of the code on that subject. No trust company
can be incorporated with less capital stock than $ 1,000,000 . May
do a storage business with a capitalization of not less than $ 1,200,000.
Foreign companies desiring to operate in the District must first comply with the provisions for the organization of trust companies under
the laws of this District.
Wills. All wills and testaments must be in writing and signed by
the testator, or by some other person in his presence and by his express
directions, and shall be attested and subscribed in the presence of
the said testator 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 executing 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
thereof
the testator to devise property acquired after the execution
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 thereof, 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 devisce 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 & BLOUNT & CARTER,
Attorneys at Law. Pensacola .
Accounts, Open accounts are barred in three years.
Acknowledgments must in every instance be under official seal.
If made in the State of Florida, may be made before any judge , justice
of the peace, clerk or deputy clerk of a court of record, or notary public:
or 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, or before a judge or clerk of any court of the United States
or of any state, territory or district, having a seal, or before a notary
public or Justice of the peace of such state, territory or district, having
an official seal, and the certificate of acknowledgment or proof shall
be under the seal of the court or officer as the case may be. If made
out of the United States, before any commissioner of deeds appointed
by the governor of the State to reside in such country, or any notary
public of such foreign country, or before any minister charge d'affaires,
consul-general, consul, vice-consul, commercial agent, or vice-commercial agent of the United States appointed to reside in such country.
Conveyances of dower and powers of attorney for the execution of
deeds to real estate must be executed in like manner as conveyances of
real estate . A wife's acknowledgment must be taken separate and
apart from her husband. Officers must certify that the grantors are
known to him. The following is the usual form adopted, viz:
State of Florida,
{
County of
.and
Before the subscriber personally appeared ..
known to me to be the Individuals described in
his wife
and who executed the foregoing instrument who acknowledged that

BANKING AND COMMERCIAL LAWS - FLORIDA
they executed the same for the uses and purposes therein expressed ;
and the said ....
wife of the said ..
.... being by me further and privily examined separate
and apart from her said husband, acknowledged and declared that
she executed the same freely and voluntarily, and without fear, apprehension, compulsion, or constraint of, or from, her said husband, and
for the purpose of renouncing and relinquishing all her right, of whatsoever kind, in and to said property.
19 Given
... under my hand and seal official this ........ day of ......
Actions. Suits shall be begun only in the county (or, if less than
$100 inof justice
the the
defendant
or where
cause
action district
accrued,) where
or where
propertyresides,
in litigation
is. the
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 keep an office. Foreign corporations may
be sued in any county 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 appointing no executor, the probate court
appoints an administrator, preferring first the next of kin; but if none
such apply, then, upon notice given by publication, any creditor or
suitable person. No minor can 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 compensation 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 fact 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 governing writs of error as far as it relates to filing of
transcripts of records and proceedings thereon and filing assignment
of errors, the duty of appellate court 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
clerk and recorded in 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 be set aside for fraud, corruption, gross negligence,
or misbehavior of one or more of the arbitrators or umpire, or evident
mistake acknowledged by the arbitrators or umpire, who made and
signed the award.
Arrest. No arrest for non-payment of money unless it be for nonpayment 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 defendant 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 resides 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
actually removing, or is about to remove, beyond the judicial circuit
in which he, she, or they reside. Attachment may also issue for a debt
not due, upon affidavit stating that the debt is actually existing, and
that the defendant is actually removing his property beyond the
limits of the State, or is fraudulently disposing of his property for
the purpose of avoiding the payment of his just debts or demands, or
is fraudulently securing his property for such purpose. Proof must,
also, be exhibited to the officer by affidavit other than that of the plaintiff, of the existence of the special ground . The making of the affldavit causes all debts to mature for the purposes of the suit. Plaintiff
must give bond, with two securities, in at least double the debt or sum
demanded . Service of notice of the suit may be either personal or
by publication where attachment is levied and property is not retaken
by defendant. No arrest allowed in civil actions. Writs of garnishment may be issued at commencement of suit or at any time afterward, provided the plaintiff, his agent or attorney, will make affidavit
that he does not believe the defendant will have in his possession,
within the State and county, visible property on which a levy could
be made, sufficient to satisfy such execution as he believes he shall be
able to obtain,
and that amant expects to obtain a judgment for (a
specified
amount).

Banks. No banking company shall be organized with a capital
less than $50,000, except that banks with a capital of not less than
$15,000 may, with approval of comptroller, be organized in any city
or town containing not more than 3,000 inhabitants , and that banks
with a capital stock of $25,000 may, with the approval of the comptroller, be organized in any city or town of not more than 6,000 inhabitants .
Savings banks may have not less than $ 20,000 capital . Banks
corporations are, and can not begin business until
are
formed as other compt
author
ized by the
roller. The comptroller of the State may
Inspect and supervise the business of the bank, and inspect and
examine its books, papers, documents , minutes, and everything pertaining to the acts of the bank. Banks are required to make a semiannual return to the State comptroller of resources and liabilities , and
advertise in January of each year amount of stock, property, and contractual Indebtedness . Before organization 50 per cent of the capital
stock must be paid in cash: 10 per cent each month thereafter. Stockholders are individually liable to the extent of their stock at the par
value thereof, in addition to the amount invested in said shares.

1391

Directors must be citizens of the United States, and own ten shares of
stock of $100 per share. The comptroller, with the aid of the courts,
winds up the affairs of insolvent banks.
Bills of Lading. Bills of lading are evidence against the carrier of
the direction by which freights are to be received, carried , and delivered
-collector or holder of commercial paper, attached to bill of lading not
awarrantor of the quantity or quality of the goods represented thereby,
except by express contract in writing, and the officers, agents, and
employes of the carrier are required to comply with the terms of the
bill of lading under penalty of criminal prosecution.
Chattel Mortgages and Deeds of Trust. All conveyances intended to secure
payment of money are mortgages. Chattel
mortgages must bethe
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 by statute. It is a criminal 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 without the consent of pledgor.
A written agreement may be made at the time of making the pledge
for the sale of the collateral in such manner and upon such terms as
the parties may desire.
Contracts. In order to bind an administrator personally, or one
for the debt or default of another, or one upon an agreement made in
consideration of marriage; or upon contracts for the sale lands, tenements, or hereditaments or any uncertain interest therein, or for any
lease thereof for a period longer than one year; or upon an agreement
not to be performed within one year, there must be an agreement, note,
or memorandum thereof in writing signed by the party to be charged,
or some one lawfully authorized by him. Contracts for the sale of
personal property must be in writing, or the property must be delivered
or earnest money paid. Newspapers and periodicals 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 incumbrances, must be
recorded . The wife's separate estate can be conveyed only by the
joint deed of herself and husband, and confirmed by her acknowledgment, taken separate and apart from her husband. Words of limitation unnecessary. Husband may convey direct to wife.
Corporations may be organized for any lawful business under a
general law. Stockholder liable only for amount unpaid upon subscription. 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 times open for
probate 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 judgment. but suit at law must be first brought and judgment must be
obtained 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
trial of the cause, or is very aged or
State to remain until after the
infirm ; or when oath is made that a material part of the case or defense
depends upon the testimony of such witness. The time for the suing
out of the commission, the names of the witnesses, and the name of
one commissioner must be given to opposite side a reasonable time
before commission is issued . Printed instructions for the guidance of
commissioners usually accompany commission. Fees of not less than
$5.00 a witness are to be taxed as costs by the clerk 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 descendants. 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 paternal and one to the maternal branches in
the following course : 1. To grandfather. 2. To grandmother.
uncles and aunts. 3. To great grandfathers. 4. To great-grandmother, brothers and sisters of great-grandfathers, etc., passing first
to nearest lineal male and then to lineal female ancestors and their
descendants. The estate of an infant decedent, if without issue,
leaving 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 their 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. Allens have same
right as citizens. 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 intemperance, willful and continued desertion for one year.
Divorce obtained in another State or country; that either party has
another husband or wife living. Alimony or suit money will be granted
upon wife's application and will be allowed upon same grounds as
would justify an absolute 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 lieu of dower.
Evidence . Witnesses not disqualified by reason of interest. In
civil cases, husband and wife may testify for or against each other.
In sults by or against lunatics or personal representatives, heirs-atlaw, next of kin, assignee, legatee, devisee, or survivor of a person
deceased, no evidence 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

1392

BANKING AND COMMERCIAL LAWS- GEORGIA

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 homestead of 160 acres of land, and improvements, if in the country ; onehalf acre of ground, if in an incorporated city or town, together with
$ 1,000 worth of personal property. The exemptions in a city or town
shall not extend to more Improvements or buildings than the residence
and business house of the owner. No property is exempt from sale
for taxes or assessments, or for obligations contracted for its purchase,
or the erection 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 shall 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 allenated by their joint execution. Husband not liable for
wife's antenuptial 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 claiming 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 statement 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 usurlous, and all interest forfeited.
Judgments of a court of record are a lien for twenty years upon
real estate of debtor within the county where rendered , and may be
extended to other counties by recording certified transcript of judgment in any county where a lien is sought. Judgments of justice of the
peace may be made a llen upon real estate by recording in the office
of clerk of circuit court.
Liens. In order to secure a llen by lis pendens, a statement must
be filed with the clerk of the circuit court, and recorded by him in a
book kept for that purpose, setting forth the names of the parties, and
the nature of the relief sought, and the description of the property
upon which it is desired to obtain a llen . 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
debt due
to
contractor.
Owner
personally
liable
in like balance
amount. of Statutory
llens upon real estate, in order to be available as against subsequent
purchasers or lienors, must be recorded within three months, and sult
must be brought within twelve months after the furnishing of the
material, or the performance of the labor. Llens upon personal
property exist only while possession is retained by llenor.
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
courts of
the In
United
or of any
state
territory
other thanofFlorida
Itself,
sevenStates,
(7) years.
Actions
onorFlorida
Judgments -actions on contracts or obligations in writing under scal
twenty (20) years. On contracts in writing not under seal, five (5)
years. On all actions not herein and specifically mentioned , four (4)
years. Trespass to realty, action upon llability created by statute
other than a penalty of forfeiture, taking, detaining or injury to
chattels, for relief on the ground of fraud, upon contract not founded
upon Instrument of writing. Including an action open account for
goods,wares and merchandise, three (3) years . Actions for libel, slander,
assault and battery, false imprisonment two (2) years. Actions
against railroad companies for killing cattle, and any action by the
State for a statutory penalty or forfeiture, one ( 1 ) year.
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's debts except by her written consent,
executed according to law regulating conveyances of married women.
Husband 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 sult . 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 onethird of all personalty; or may at her option take as an heir equally
with the children of the husband, and if there are no children she will
inherit all the property, real and personal.
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 foreclosed 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
marriage 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 commercial 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 September, 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 observances, Shrove Tuesday or Mardi
Gras in every city in which there is a carnival association organized
for the purpose of celebrating it, shall be deemed presentable for
payment or acceptance 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 administration of estates of decedents.
Protest. (See Notes and Bills of Exchange .)
Records. Records of deeds and mortgages are kept in the office of
the clerks of the several circuit courts, and 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
of the
In any county in which the deceased left property, if heindies out
State. If death takes place within the State, then 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 bond
in double the value of the property with two sureties given before the
writ is issued. Defendant may release the property within three days
by forthcoming bond.
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
garnishment. Writs are returnable on the next rule day, provided
ten days intervene ; if not, then on the rule day in the next succeeding
month. If no appearance 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 judgment
upon which execution 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
assessments 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
negotiable. 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
in his presence and by his
must be signed by testator or some person
express direction, and must have two witnesses who must subscribe
in testator's presence . Wills of personal property must be in writing
by his
and signed by the testator or some one in his presence, and
property.
express direction . Nuncupative wills are good as to personal
Revocation must be in writing, attested by two witnesses. Wills
must be probated before admittance in evidence. Foreign wills,
when duly probated according to laws of the State, where made and
duly recorded in this State, are as effective as wills executed in this
State. Foreign wills are construed according to law of State where
they are executed.
SYNOPSIS OF
THE LAWS OF GEORGIA

RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by WIMBIS & 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

BANKING AND COMMERCIAL LAWS- GEORGIA

1393

ofce. 3. Where it is left at a bank or banker's office for collection .
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 in
Accommodation endorsors, sureties and endorsors may be sued in
the estate. If no preference is expressed the ordinary exercises
the
same county and in the same action with the maker, drawer or
his discretion. If no application is made by next of kin a creditor acceptor.
Bills of exchange must be accepted in writing to bind
acceptor. A contract to pay attorney's fees cannot be enforced
the
may be appointed, and if no application is made the ordinary will
vest the administration in a county administrator, an officer authorized
unless
the
debtor
when served ten days before suit is filed with a
by statute for that purpose. Administrators must give bond in double
written notice of intention to sue with amount and term of court to
the value of the estate. Out of the estate of each deceased person,
which suit will be brought, shall fail to pay such debt before return
the first charge, after funeral expenses, is a year's support for the day. A waiver of homestead in a promissory note is a bar to such a
family, to be laid off by commissioners according to the condition
claim as against the collection of such note. Promissory notes and
and standing of the family. Foreign administrators may act in this
contracts containing reservation of title to personal property must
State
on
giving
bond
to
the
ordinary
where
they
qualify.
The
bondsbe executed before a notary public, justice of the peace, or clerk of a
men must be residents of this State. A citizen of any other State may court
of record, and must be recorded as mortgages to hold such
act as executor of the will of a deceased citizen of this State when he property
as against third parties or innocent purchasers.
has the same interest and will give the same bond as in the case of
Collaterals . The holder of a note as collateral security for a debt
foreign administrators. Administrators of other States may sue In
stands upon the same footing as the purchaser. Property left in
this State by filing in the office of the clerk of the court, to which suit
pledge or pawn may be sold at public sale to the highest bidder, upon
is brought, a properly authenticated copy of their letters of administhirty days notice.
tration.
Affidavits. Pleas and defenses in the courts of this State which
Corporations. Powerto create corporations in this State is vested
are required to be under oath, may be made before any official of in the general assembly and the superior court. Said courts may
grant charters to all corporations except banking, insurance, canal,
the State or county where the oath is made, who is authorized by
the laws of such State or county to administer oaths. Prima Facie navigation, express, and telegraph companies and railroads. The
the official attestation of the officer is evidence that he was author- general assembly may grant charters for the corporations above
enumerated. A charter for a private corporation is obtained by a
ized to act. Any non-resident seeking equitable relief, when called
on to verify proceedings, should be sworn before a commissioner of petition to the superior court, setting forth the object, particular
business, corporation name, capital, place of business, time for which
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 incorporation is desired , not exceeding twenty years. The petition
and order granting the same constitute the charter. In such corporathe judge is genuine, and that the court over which he presides is a
court of record .
tions the liabilities of the stockholder is measured by the amount of
unpaid stock subscription due by him. In the charter of many banks
Aliens. The subjects of governments at peace with the United I now
organized the rule of personal liability varies. In some banks
States and this State are entitled to the rights of citizens of other stockholders
are liable as partners : In others liability exists under
States, resident here, in so far as they accord to them the privilege the general rule,
viz: to the extent of twice the amount of stock held,
of purchasing, holding, and conveying real estate.
and
in
some
banks llability exists only to the extent of stock and
Appeals. (See Courts .)
unpaid subscriptions thereon, The payment of 10 per cent. of the
Arbitration. Under the law of Georgia disputes and controversies capital stock is necessary before commencing business. General
powers of corporations are conferred on all corporations organized
relating to rights, or property, may be submitted to arbitration.
this state. All corporations organized under the laws of the State
Arrest. The constitution of Georgia declares that there shall be in
or doing business therein are required to register with the Secretary
no imprisonment for debt. But in an action to recover personal 1 of
State
and pay one dollar or be liable to a penalty of $ 50.
property the defendant will be arrested by the officer to whom process
Costs. A deposit of $ 10 is required in courts of record from
is directed, and will be committed to jail unless he shall give bond
non-residen plaintiffs before the filing of suits and a deposit of $ 6 in
and good security, or deliver up the property, or show to the satisfacall divorce tcases.
tion of the court that it is without his power to produce it.
Courts. The term, jurisdiction, etc.. of the several courts of this
Assignments. Assignments for the benefit of creditors are per- State
are as follows : JUSTICE COURTS hold monthly sessions and
mitted .
have civil jurisdiction up to $ 100. In criminal matters they are
Attachments. A summary process of attachment will lie in
committing courts. COURTS OF ORDINARY hold their
the following cases: 1. Where the debtor resides out of the State. only
monthly and have jurisdiction over wills, administrations of
2. Where he is actually removing, or about to remove, without the sessions
estates, and of the conduct of administrators, executors and guardians.
limits of the county . 3. When he absconds. 4. When he resists
COUNTY
COURTS have monthly and quarterly sessions. Their jurisproperty
remove
arrest.
legal
his
attempting
Where
to
he is
5.
a
diction is limited
controversies
exceeding $300 . CITY
beyond the limits of this State. 6. Where he has disposed of, or COURTS hold fourtosessions per annumnot
, but the city court of Atlanta
threatens to conceal, his property, llable for the payment of his debts,
has
six
terms.
The
jurisdiction
of
city
courts
is unlimited , except in
or shall make a fraudulent lien thereon to avoid paying his debts,
matters of divorce, titles to land and administration
of equitable relief.
Attachment will lie to recover the purchase money of an article sold SUPERIOR COURTS have jurisdiction
of
all suits and controproperty.
Attach- versies and have exclusive jurisdiction in equity
when the debtor is still in the possession of the
powers, divorce
ments may issue upon affidavit by the plaintiff, his agent or attorney,
and suits involving titles to land, and on the criminal side exwho must swear that one of the state of facts exists which authorize cases,
clusive
jurisdiction
of
all
cases
involving
life
or
imprisonment
in the
an attachment. and also as to the amount of the claim . Bond and penitentiary.
the affidavit
security, in double the amount sworn to , must accompany corporations
Deeds.
Deeds
to
real
estate
in
Georgia
must
be
in
writing,
and
security.
personal
Non-resident
and the officers require
are liable to attachments, and one non-resident may attach the should be executed in the presence of two witnesses, one of whom shall
property of another non-resident in this State, except for wages 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
earned without the State.
land lies, and all deeds, mortgages, and other liens, should be recorded
Banks. Any number of persons, not less than three, may form
to be available against third parties and Innocent pura corporation for the purpose of carrying on the business of banking. immediately
chasers. To authorize the record of a deed to realty, it must be atcontinua
have
to
l tested by or acknowledged before, if executed out of this State, a
Such corporations , when organized , has power
succession for thirty years, with right of renewal; to sue and be sued;
of deeds for the State of Georgia, notary public, clerk
to have and use a common seal; to appoint officers and agents ; to make commissioner
of a court of record , or a consul, or vice-consul of the United States
by-laws; to hold. purchase, dispose of, and convey such real and (the certificates of these officers under their seals being evidence of
personal property as may be necessar
y for its uses and business ; to the fact) . When the deed is executed out of this State before a
discount bills, notes, or other evidences of debt; to receive and pay notary public, the attestation should be under his hand and official
out deposits, with or without interest ; to receive special deposits ; to seal
. In case of acknowledgment it is better, as a matter of precaution,
deal in foreign exchange; to lend money upon personal security, or always to have two witnesses, besides the officer who takes the acknowlpledges of bonds, stocks, negotiable security: to take and receive edgment. If executed in this State, it must be attested by a judge of
securities by mortgag
e or otherwise on property real or personal.
court of record of this State, or a justice of the peace, or notary
The business of the corporation shall be under the management and apublic,
or clerk of the superior court, in the county in which the three
control of a board of directors , to consist of not less than three or more last
mentioned officers respectively hold their appointment, or if subsethan fifteen of the members of the corporation, who must be owners
quent to its execution the deed is acknowledged in the presence of
and holders of one or more shares . No bank shall be chartered with- either
of the named officers, that fact, certified on the deed by such
out a capital subscription in good faith of at least $25,000, of which officer, shall entitle it to be recorded . (Act of 1893.) Deeds to secure
be loans are in more common use than mortgages because they have
not less than 20 per cent, and in no case less than $ 15,000 mustThe
secretar
State.
of
declarat
the
with
y
ion
paid in before filing the
held to pass the absolute title and protect against year's support
corporation shall be responsible to its creditors to the extent of its been
and dower, the equit of redemption remaining in the maker, can not
capital and its assets, and each stockholder shall be individually able be levied upon until the debt to secure which the deed has been paid
for all debts of the corporation to the extent of his unpaid shares of off. Under the law of Georgia these deeds can not be foreclosed as
stock, and shall be further and additionally llable, equally, and ratably mortgages, the notes they are given to secure must be sued to judgand not one for another as sureties) to depositors of said corporation, ment, the land must be re-conveyed to the grantor, and then levied
to the face value on, but the lien of the judgment relates back to the date of the condeposited therein in an amount equal
for all moneys
a banking business veyance
their respective shares. All corporat bankdoing
of
. In the Federal courts, however, foreclosure can be made
examiner, under oath,
in this state shall make to the State ions
In equity as in the case of ordinary mortgages. Usury will, however,
corporation,
at the
statements showing the resources of the bank or
void
such
a conveyance.
close of business on any day specified by th bank examiner. No
Depositions. Testimony is taken in this State by written interbank shall loan to its officers any money without good collateral, or
of
the
cent
rogatories where the witness is a female, or where the witness does
other ample security, and when such loan exceeds, 10 per
in writing by a not reside in the county where the suit is pending, or by reason of disacapital stock it shall not be made until approvedcorporation
doing bility is unable to attend court. In counties within this State, having
majority of the board of directors . No bank or
banking business shall reduce its cash in hand, including amount due a population of over 20,000, depositions may be taken upon five days'
by banks and bankers, and the value of all stocks and bonds actually notice to the other party of the time and place at which the witness is
owned and held, below 25 per cent of demand deposits. No bank to be examined. This latter process cannot be used for taking testior corporation doing a banking business shall loan to any one person, mony outside of the State. In taking answers to interrogatories.
unless such loan is amply secured by good collateral security, more which must be authorized by a commission issued for such purpose
than 10 per cent of its capital stock and surplus. Banks may charge by the court here, two commissioners must act. Commissioners must
same rate of interest as individuals, and the rules of bank discount. be disinterested and not related to either party, or connected with
have the case : attorneys of the parties are incompetent. None of the parties
the lawful
within
in advance
Interest
to say,
that
usurious.
byrates,
any bank to
be declared
not taking
shall
No dividend
been isheld
the case, nor their agents or attorneys, can be present when the
be applied to commission is executed. The witness can only write his answer in
except from the net profits, nor shall the capital stockare
Insufficient the presence of the commissioners . It is usual, and the better practice.
the purchase of its own shares . If the assets of a bank
to pay its liabilities, a receiver when appointed , shall bring suit against for one of the commissioners to write the answers of the witness as
the stockholders in his own name for their unpaid subscriptions. In they are given . Depositions may be written with the typewriter,
the absence of a contract, expressed or implied , to the contrary, the and commissioners may adjourn their sittings from day to day . The
bank taking paper for collection is liable for the defaults of its agents following instructions for taking testimony are important: Instructo whom the paper has been entrusted for collec- tions for taking answers to interrogatories: 1. Insert the commisand
tion.correspondents
If any insolvent bank or banker, with notice of such insolvency, sloners' names in the commission ; any two respectable citizens will
shall receive money or general deposits, and fail to pay the depositor do. 2. State the case as you find it. Then comes the caption , thus :
within three days after demand, such banker or officer in charge of the State of
(Here insert the county and State
SS. where
in the
as public
prescribed
be punished
deposit
theState
bank
the commission is executed .)
County of
de
money
lien for all
a special
code. The
has shall
penal receiving
court of
By
virtue
of
a
commission
from
the
posited.
county, we have caused the person in said commission named to come
Bills of Lading and Promisory Notes . A bona fide assignee before us, who being duly sworn true answers to make to certain
of a bill of lading of goods will be protected in his title against the
interrogatories thereto annexed , deposeth and answereth as follows:
seller's right of stoppage in transit. It will not be necessary to protest
(Here Insert answers of the witnesses to each interrogatory in order.)
3. Let the witness sign the answers ; then say: 'Answered, sworn to.
promissory
notes
In
order
to
bind
the
endorser
except
in
the
following
case : 1. Where the paper is made payable on its face at a bank or
19....
Then
and subscribed before us, this .... day of
banker's office. 2. Where It is discounted at a bank or banker's
sign your own names, adding the words " Commissioner (L. S.)" after

1394

BANKING AND COMMERCIAL LAWS - GEORGIA

each name. 4. Seal all up together, using two wafers, each commissioner writing his name with "Commissioner" across a wafer or
seal. 5. State the case on the package, and
address it to the clerk
of the court issuing the commission. 6. If it is to go by mail, get
the postmaster to receipt on the package. "Received from one of
the commissioners (giving his name) the within interrogatories, to be
forwarded by due course of mail, " naming his post-office. Testimony
thus taken must be sent by mail, or by some person specially authorized by the commissioner to carry it to the court .
Descent and Distribution of Property. The husband is the
sole heir to his intestate wife, unless she leave children, and in that
shall inherit per capita, but the
event the husband and children
descendants of children shall take per stirpe. If a man die without
children, or the descendants of children, leaving a wife, the wife is
his sole heir. If there are children, or those representing deceased
children, the wife shall take a child's part, unless the shares exceed
live in number, in which case the wife shall have one-fifth part of the
estate. If the wife clects to take her dower, she has no further interest
in the estate. Children stand in the first degree to the Intestate, and
upon the same footing
inherit equally. Posthumous children stand
with other children. Lincal descendants of children stand in the
per
stirpe, and not per
take
and
parents,
deceased
of
their
place
capita. Brothers and sisters stand in the second degree and inherit
if there be no widow or children, or representatives of children.
the whole
The half-blood on the paternal side inherit equally withand
sisters,
blood. The father, if living, inherits equally with brothers
and stands in the same degree . If there be no father, and the mother
is alive, she shall inherit in the same manner as the father would .
Real estate descends direct to the heirs, and personal estate to the
administrator. But real estate is subject to administration for the
purpose of paying debts, and if necessary, for distribution .
Divorces. Total or partial divorces may be granted in this State.
Suits can only be brought in the superior courts, and must be commenced by petition. Such suits stand for trial at the second term,
and there must be two verdicts by separate juries, rendered at different
terms, to authorize a total divorce . Divorce cases shall be brought
and tried in the county where the defendant resides, if a resident of
Georgia, and if the defendant is a non-resident, suit must be brought
and tried in the county where the plaintiff resides. If the defendant
is a non-resident, service may be perfected by publication in a newspaper in which the sheriff's advertisements are published twice a month
for two months. The jury rendering a final verdict will fix the status
of the parties under the direction of the court. Total divorces may
be granted on the following grounds : 1. For marriage by persons
within prohibited
degrees of consanguinity or affinity. 2. For
mental incapacity at time of marriage. 3. Impotency at time of
marriage. 4. Force, menaces, duress, and fraud in obtaining the
marriage. 5. Pregnancy of the wife at time of marriage, unknown
to the husband . 6. Adultery in either party after marriage.
7. Willful and continued desertion for three years by either party.
8. Conviction of either party for an offense involving moral turpitude, under which he or she is sentenced to a term in the penitentiary
for a term of two years or longer. 9. Cruel treatment or habitual intoxication by either party. In cases under this ninth division a jury
may grant a total or partial diyorce, in their discretion . A residence
of twelve months in this State is necessary to entitle a party to maintain a suit for divorce.
Dower. In this State the wife is entitled to an estate for life in onethird of all lands of which the husband dies seized or possessed at the
time of his death, or to which the husband obtained title in right of
his wife. There is no necessity for renunciation of dower in this State,
and a married woman, on that question , need not join with her husband in conveying land , except in cases where, before 1866 , he obtained
real estate belonging to his wife, by virtue of the marital relation.
Executions. Must follow the judgment or decree from which they
issue. They are good for seven years and may be renewed for a like
period by entry nulla bona.
Exemptions and Homesteads. Under the constitution and laws
of Georgia, each head of a family or guardian, or trustee of a family
of minor children, or of an aged or infirm person, or a person having
care and support of dependant females of any age, who is not the
head of a family, shall have exemption of realty, or personalty, or
both, to the aggregate of $ 1600. The debtor shall have power to waive
or renounce, in writing, his right to the benefit of exemption above
stated, except as to wearing apparel and not exceeding $300 worth
of household and kitchen furniture, and provisions. The homestead
or exemption may be sold by the debtor and his wife, if any, with the
sanction of the judge of the superior court of the county where the
debtor resides, or the land is situated. The proceeds to be re-invested
upon the same uses. A general waiver in writing, of the homestead,
or exemption, is good.
Foreign Corporations. All corporations, except those chartered
and organized under the laws of this State, are held to be foreign
corporations. Such corporations are recognized by comity only;
they are subject to attachment, but have all the rights of replevy and
defense. They cannot exercise any corporate powers or privileges
which by the constitution and laws of Georgia are denied to domestic
corporations or the exercise of which would be contrary to the public
policy of this State. There is otherwise no restriction upon foreign
corporations except in the case of insurance companies and building
and loan associations, which are required to make deposits . All corporations are subject to license fees for doing business and all are liable
for taxes on property owned or held in the State. (See Corporations.)
Fraud. Contracts, awards, marriages, judgments, sales, and wills
are vold when they are brought about and procured by fraud. Promissory notes when procured by fraud are void in the hands of the holder,
who so procures them. The statute of frauds, as of force in Georgia,
requires the following obligations to be in writing, signed by the party.
or his authorized agent, to be binding : 1. A promise by an executor.
administrator, guardian, or trustee, to answer in damages out of his
own estate . 2. A promise to answer for the debt, default , or miscarriage of another. 3. An agreement made upon consideration of
marriage, except marriage articles as otherwise provided . 4. Any
contract for the sale of lands, or any interest in or concerning them.
3. Any agreement that is not to be performed in a year. 6. A
promise to revive a debt barred by statute of limitations or bankruptcy . 7. Any contract for the sale of goods, wares, and merchandise,
in existence or not in esse, to the amount of $ 50 or more, except the
buyer shall accept part of the goods sold and actually receive the same
or give something in earnest to bind the bargain or in part payment.
8. An acceptance of a bill of exchange.
Garnishments. This process may be invoked in any case. Garnishment may be dissolved by giving bond and a third party may
by
the fund
and may
garnishment
up under
fund held
claim
mechanics,
are exJourneymen
and release
Wages
of laborers,
givingabond.
empt from process of garnishment.
Interest. The legal rate of Interest in Georgia is 7 per cent, but
Is legal when contracted for in writing. Parties charging usury forfeit
the excess if usury is set up. And usury will render a deed vold, and
will in a contract or mortgage render a waiver of homestead, or contract to pay attorneys' fees vold.
Judgments create llens from their rendition upon the real or personal property of the defendant ; all judgments at the same term rank
7

equally, and property sold by a debtor after judgment is obtained
against him is only discharged from the lien of such judgment, if real
estate, after four years' possession by the vendee, and in cases of personal property, after two years' Judgments, whether in the United
States court, or in any State court, obtained in any other county than
that in which the defendant resides have no lien on the property of
the defendant in any other county, unless the execution thereon is
recorded in the county of the defendant's residence. Unless such
execution is recorded as so required within thirty days, its lien will
only date from the time of record . (See Actions.)
Jurisdiction . (See Title Courts.)
License. No license is required of commercial travelers . Itinerant
traders must pay license fees.
Liens. Under the laws of Georgia mechanics, material-men, machinists, employes of steamboats, millwrights, builders of gold mine
machines, stone-cutters, and marble works laborers have special liens
on property improved or worked on. Landlords have a general llen
which takes effect from the levy of distress and a special lien on crops
for rent of land on which they are raised. Common law liens of innkeepers, factors, pawnees, carriers, attorneys and others are recognized. Vendor's flen on land has been abolished . Attorneys have a
special lien on papers in their hands and on property recovered in suits
brought by them or successfully defended by them.
Limitations. Suits on open accounts are barred after four years.
on promissory notes and bills after six years, on instruments under
seal after twenty years, on sults for personal injury after two years.
Seven years' adverse possession of real estate under color of title, and
twenty years' adverse possession without color of title, will bar the
claims of all persons not laboring under disability. Infants have seven
years to assert their rights, after becoming twenty-one years of age.
Married Women. The wife may contract and sue and be sued in
her own name in respect to her separate estate as a femme sole, except
that she can not bind her separate estate by suretyship for her husband, and any promise to pay her husband's debt is void. She cannot
sell to her husband or trustee for any purpose, except by order of the
superior court. A wife or her heirs may sue and recover from any
person money or property used by her husband to pay his debt where
the creditor takes with notice. All the property of the wife at the
time of marriage, and all she may acquire by gift, inheritance, or purchase, shall vest in and belong to her, and shall not be liable for the
debt, default, or contract of her husband . The wife with her children.
if any, is entitled to twelve months' support out of the estate of her
deceased husband. The husband is bound to support and maintain
the wife, and his consent is presumed to her agency in the purchase of
necessaries. The wife's separate property is not liable for debts contracted by her as agent of her husband in the ordinary support of herself and children, but by special contract in her own capacity, and
not as agent for her husband, she could bind her separate estate, for
that purpose . A married woman can dispose of her property by will.
Mortgages. Mortgages are only security for debts. They may
embrace property in the mortgagor's possession, or to which he has
a right of possession. They may cover a stock in bulk, but changing
in specifics, and after acquiring property. No particular form is
necessary, but it must be clear that the instrument indicates a lien.
describes the property and specifies the debt it secures. Mortgages
on land are not good against dower, and a wife cannot waive her
dower as against this llen. Mortgages must be executed and attested
in the same manner as deeds, except that in mortgages on personal
property, only the official witness is necessary. Mortgages with power
of sale are valid in Georgia. Homestead and exemption may be
waived in the mortgage. All mortgages on personal property must
be recorded in the county where the mortgagor resides and the property is located. Mortgages on land must be recorded in the county
where the land is situated.
Notaries. Commercial notaries are appointed for four years by
the superior courts . They must have seals and are authorized to
attest deeds and mortgages, and make protest of commercial paper.
Notes and Bills of Exchange. (See Bills of Lading and Promissory Notes .) Promissory notes are negotiable by endorsement of
payee, or holder, notes payable to bearer are transferable by delivery
only Bonds, specialties, contracts, bills of lading, and warehouse
receipts, are negotiable by endorsement or written assignment in the
same manner as bills of exchange and promissory notes. Endorsements may be limited by express restrictions. Acceptances of bills
must be in writing. Transferers 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 where
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 llen upon all the property of the debtor, rea
or personal, and its lien is preferred as stated in section herein relating
to distribution of the estates . Sales of property for taxes are conducted in the same manner as other judicial sales. One year in which
to redeem is allowed.
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
nuncupative 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 probate in this State, when an authenticated copy of the
will is presented, accompanied by a certificate of the governor of such
State, under the scal of the State, that the official of the court where
such probate was made, had original jurisdiction of the subject-matter.
Wills are probated in the court of ordinary in the county where the
testator resides at the date of his death. All wills executed out of this
State by citizens of this State to dispose of property in Georgia must

BANKING AND COMMERCIAL LAWS - IDAHO
be executed according to our law. A foreign will, executed according
to the law of Georgia, will constitute a muniment of title to real property without being probated in this State, when recorded on the record
of deeds in the county where the land lies, together with an exempllfication of record admitting it to probate 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 & HAGA, Attorneys at Law,
Boise City. (See Card in Attorneys' List.)
Acknowledgments. All conveyances and other instruments
required to be acknowledged in this State must be acknowledged, if
within the State, before a judge or clerk of a court of record , a county
recorder, a notary public, or a justice of the peace. If without the
State, but within the United States, they must be acknowledged before
any such officer, or a commissioner of deeds for this State, or before
any officer authorized by the laws of this State or Territory to take
such acknowledgment. If without the United States, they must be
acknowledged before a minister or charge d'affairs of the United
States, resident and accredited in the country where the acknowledgment is taken, before a consul or vice-consul, a judge of a court of
record, a duly appointed commissioner, or a notary public. The
certificate of acknowledgment. If made before a justice of the peace.
when used in any county other than that in which he resides, must
be accompanied by a certificate, under the hand and seal of the recorder
of the county in which the justice resides, setting forth that such
justice, at the time of taking such acknowledgment, was authorized
to take the same, and that the recorder is acquainted with his handwriting, and believes that the signature is genuine. Proof of the execution of an instrument may be made though it has not been acknowledged. Form of married woman's acknowledgment the same as that
of a single person. (See Conveyances .)
Actions. There is but one form of civil action in this State . An
action is commenced within the meaning of the statute when the
complaint is filed with the clerk. Every action must be prosecuted
in the name of the real party in interest.
Affidavits are used only to verify pleadings, to prove service of
summons, notice, or other paper, to obtain provisional remedy.
Aliens except such as have declared their intention to become
citizens and corporations ( except railroad and mining) , whose members
are not exclusively citizens or persons who have declared their intention to become such, shall not acquire any land, other than mineral
lands, or such as may be necessary for the working of mines or the
products thereof.
They may take liens on real estate, and acquire title thereto by
enforcing the same . They take by succession as citizens ; nonresident allens must appear and claim succession within five years.
All lands, except mining lands acquired by inheritance or enforcement oflien, must be sold within five years or they escheat to the State.
Arbitration. Persons capable of contracting may submit to
arbitration any controversy which might be the subject of a civil
action between them, except a question of title to real property in
fee or for life.
Arrests. The defendant may be arrested in a case for the recovery
of money or damages on a cause of action arising upon a contract,
express or implied , when the defendant is about to depart from the
State with intent to defraud his creditors ; also for money or porperty
embezzled or fraudulently misplaced by a public officer or any person
in a fiduciary capacity, or when the defendant has been guilty of
fraud in contracting the debt, or in concealing or disposing of personal
property, for the taking or conversion of which the action is brought;
or when the defendant has or is about to remove or dispose of his
property with intent to defraud his creditors.
Assignments and Insolvency. An insolvent debtor may be
discharged 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 assignee is
appointed, and claims proved . Court will be set aside property
exempt, and issue order for direct payment of money, where no
mortgage or pledge had been given, or where such security, if given,
has been rendered neugatory by act of defendant . Assignee 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
recorded,
be
unlessinthe
defendan give security
to pay orsuch
judgment.
Defenda
of money
nt a civil actiont for recovery
damages,
under a contract, express or implied, may be arrested, when about
to depart from the State with intent to defraud, or when the debt
or obligation was fraudulently contracted .
Banks and Banking. Idaho has a full and complete law upon
the formation and regulation of banks and the formation of banking
corporations. No banking corporation can have less than five
directors . All banks, other than national banks, are under the supervision of the bank commissioner. The banker has a general llen,
dependent upon possession, upon all property in his hands belonging
to a customer for the balance 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.
Contracts.. A written instrument is presumptive evidence of a
consideration
Conveyances . Real estate is conveyed by instrument in writing,
subscribed by the party or his authorized agent in writing. The
homestead of a married person, or community property, occupied
as a residence, can be conveyed only by both husband and wife joining in the execution. During the continuance of the marriage the
wife has the management, control , and absolute power of disposition of her separate property, and may bargain, sell, and convey
her real and personal property, and may enter into any contract
with reference to the same, in the same manner and to the same
extent and with like effect as a married man may in relation to his
real and personal property. An instrument purporting to grant real
property to take effect upon condition prcedent, 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
persons,
at least one of whom must be a bona fide resident
this State
of more
. Such
corporation is formed by executing articles
of incorporation, containing: 1. The name of the corporation. 2.

1395

The purpose for which it is formed. 3. The place where its principal business is to be transacted . 4. The term for which it is to
exist (not exceeding fifty years) . 5. The number of its directors or
trustees, not exceeding fifteen, who must be stockholders of the
corporation. 6. The amount of the capital stock and the number
of shares into which it is divided. 7. The amount actually subscribed, and by whom. The articles may provide for the election
of one-third of its directors annually. Railroad, wagon road, telegraph
and telephone corporations must also state in their articles: 1. The
kind of road, telegraph or telephone line intended to be constructed.
2. The estimated length of the road or line. 3. They may provide
in their articles the number of directors which shall constitute a quorum
such
for the transaction of business, the decision of the majority of shall
quorum to be a valid act. 4. Whether meetings of the board
be held within or without the State. 5. Whether stockholders shall
be individually liable for debts of corporation. Railroad corporations
must have subscribed , before filing articles, $ 1,000 per mile; wagon
road corporations, $ 300 per mile: telegraph corporations, $ 100 per
secremile, and the articles must be verified by affidavit of president,
tary, 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 certified by the recorder, filed with the Secretary
of state. All corporations must pay between July 15th and August
15th of each year an annual 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 an annual report to the secretary
of state.
Corporation , Foreign . Foreign corporations desiring to do business 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 be 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 jurisdiction 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 criminal cases. Justices' jurisdiction, $300.
Days of Grace abolished by statute.
Depositions may be taken before any judge, justice of the peace,
notary public, or United States commissioner, or any other person
agreed upon by the parties, upon notice served upon the opposite
party, stating the court, action, time, and place, and before whom
the same will be taken, or they may be taken upon commission issued
by the judge with interrogatories attached.
Devolution of Property. (See Succession .)
Divorce. Marriage may be annulled for any of the following causes
existing at time of marriage: 1. Person when married was not of the
age of legal consent, and such marriage was contracted without the
consent of his or her parents, or of the person having charge of him or
her, unless, after attaining the age of consent such party for any
time freely lives and co-habits with the other as husband and wife.
That the former husband or wife of either party was living, and the
marriage with such former husband or wife was then in force. 3.
That either party was of unsound mind, unless such party, after
coming to reason, freely co-habits with the other as husband or wife.
4. That the consent of either party was obtained by fraud, unless
such party afterward, with full knowledge of the facts constituting
the fraud, freely co-habits with the other as husband or wife. 5.
That the consent of either party was obtained by force, unless such
party afterward freely co-habited with the other as husband or wife.
6. That either party was, at the time of the marriage, physically
incapable of entering into the marriage state, and such incapacity continues and appears to be incurable. A judgment of nullity of marriage is conclusive 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. Willfull desertion. 4. Willful neglect. 5. Habitual intemperance. 6. Conviction of felony. 7. Permanent 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 premises 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 contemplates 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 .
Employer's Liability Law. Provides for damages not to exceed
$5,000 for injuries to employee caused by employer's negligence.
Executions issue at any time within five years after judgment.
The only stay is by appeal, with secured bond. One year allowed
for redemption.
Exemptions. Homestead, not exceeding $ 5,000, if declaration
of homestead is 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 farm 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 possessedby the
person cultivating the same; tools or implements of mechanic necessary for his trade of the value of $ 500 ; all Instruments of surgeons,
etc., also call professional libraries miner's dwelling of value $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 necessary for use of family, residing in this State; the shares
held by parties of the Building and Loan Association to the value
of $ 1,000; provided , such person has no homestead; all benefits arising out of life insurance, represented 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.
Guaranty, Title and Trust Co. May furnish abstracts, act as
surety, trustee, fiscal agent. Paid up capital of $ 25,000 required .
Capital deemed security for the performance of their duties.

1396

BANKING AND COMMERCIAL LAWS - ILLINOIS

Husband and Wife. All the property of the wife owned by her sale, by paying an additional 4 per cent. In cases of tax sales, the
before marriage, and that acquired afterwards by gift, bequest, or owner may redeem in three years.
descent, or that which she shall acquire with the proceeds of her | Replevin. Action of, must be brought within three years from time
separate property, shall remain her sole and separate property, to
it accrues. Plaintiff may sue for the possession without claiming
the same extent and with the same effect as the property of a hus- immediate possession, or he may claim immediate possession at time of
band similarly acquired . The wife has the management, control, and
commencing suit or afterward . Affidavit showing that plaintiff is the
absolute power of disposition of her separate property, to the same owner, the detention , the unlawfulness of the detention, etc., and bond
extent and with like effect as a married man may have in relation with sureties required to obtain immediate possession . Defendant may
to his real and personal property. The separate property of the
execute undertaking, with approved sureties, for the retention of the
wife is not liable for the debts of her husband, but is liable for her property,
and that it will be forthcoming, subject to the order of the
own debts contracted before or after marriage. There is no estate
court
in which the action is pending, and thereupon retain the possesby courtesy or in dower. Marriage settlements are provided for,
sion
of
the
property involved.
statute
the
vary
may
and when properly executed and recorded
Seals. The distinctions between sealed and unsealed instruments
governing the relations of husband and wife concerning property
are abolished .
rights. Minors may execute valid marriage settlements.
Succession to Property. If decedent leave spouse and one child
Interest . Where there is no express contract in writing fixing a
each entitled to one-half of decedent's sparate property, both real and
definite rate of interest, the rate is 7 per cent per annum . Parties
personal; if more than one child , surviving spouse gets one-third and
may agree in writing for interest at the rate of 12 per cent per annum. remainder
in equal shares to surviving children . In the case of
Judgments bear interest at the rate of 7 per cent per annum.
community
the
spouse takes all the property in
Judgments are liens on all real estate of debtor within the county,
event there property,
are no childrensurviving
; but if children
also survive, the survivfrom time of docketing, and may be extended to other counties by ing spouse takes only one-half of the community property and the
filing transcript in recorder's office . Lien continues two years.
children take the other one-half.
Justice's court judgments become liens when certified and recorded .
Taxes. The locus of property for taxation relates to the second
May be revived by issuing execution within limitation .
Monday of January, if within the State, and if not to the day of assessLiens, Mechanics. Every person performing labor upon or furn- ment,
and is a lien from and after that date. The period of redemption
ishing materials used in the construction or repair of any mining is three years.
claim , building, or other improvement, has a lien thereon . Farm
Trust Companies. (See Guaranty Companies.)
laborers have lien upon the crop and products thereof, upon which
Wills. Every person over the age of eighteen years, and of sound
they bestow labor. All liens must be set forth by a statement in
mind, may make a will. Every will, other than a nuncupative will,
writing, showing the amount due, the facts connected with the matter.
must be in writing, and every will other than an olographic and a
that there are no credits due on the claim, or offsets against the nuncupative
will, must be executed by the testator subscribing thereto
same; which statement must be verified by the claimant, and recorded
or some person by his direction , which must be done in the presence
in the office of the county recorder, if on claim of original contractor,
of two attesting witnesses, each of whom must sign his name and
within ninety days, if on claim of other persons, within sixty days
that the testator requested him to witness the testator's signafrom the time of the completion of the structure the completion of the state
ture, and the testator must also declare in the presence of the witlabor, or the furnishing of the materials. Lien must be enforced by nesses
that such is his last will and testament.
sult within six months, unless credit is given, expires at all events
in two years .
Limitation 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
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.
Mines and Mining. (Principal regulations under United States
Statutes.) Quartz locations may be 1,500 feet long and 300 feet on
each side of the middle of lode. Monuments must be established at
all exterior angles of claim. Claim should be tied to some natural
or permanent 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 permanent, 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 estate mortgage must be acknowledged and
certified, and recorded in like manner as conveyances and deeds
of real property, 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 executed and recorded , or by entry
on margin of the 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: mortgagos, deeds, grants,
transfers, and other instruments of writing executed by any person.
Give certificate
of such proof
orand
acknowledgment,
depositions,
affidavits
, and administer
oaths
affirmations in to
all take
matters
incident
to duties of the office . To keep a record of all official acts ; when
requested , and upon payment of his fees therefore , 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.
for subscribed
grants of ,real
estate
and
to execute
a mortgagePowers
must of
be attorney
in writing,
acknowledged or proved , certified and recorded as other Instruments affecting
real property. Powers of attorney which have been recorded must
be revoked by revocation in writing, acknowledged, proved, certified.
and recorded the same as original power.
Probate Law. Probate courts have jurisdiction to open and
receive proof of wills and admit them to proof; to grant letters testamentary and guardianship and revoke same: appoint appraisers of
estates, compel executors, etc., to render accounts : order sale of 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
affecting the title to lands must be recorded. Inventory of the
separate personal estate of a married woman when recorded, becomes
prima facle evidence 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 attached 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 10 per cent additional. Property may be redeemed by successive redemptioners
within sixty days from last redemption, and within one year from

SYNOPSIS OF

THE LAWS OF ILLINOIS
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Messrs . CRATTY BROS . , JARVIS & HUDSON ,
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 .
personally known to
The official should certify that
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
release and walver
of the right of homestead . " 2. Outside this the
State, a justice, notary,
master, United States commissioner, commissioner of deeds, mayor.
county clerk; or judge, justice, clerk, or deputy of any United States
court: or any judge, justice, clerk, deputy, prothonotary, surrogate,
or registrar of supreme, circuit, superior, county, common pleas.
probate, orphans, or surrogate's court of any state, territory, or
dependency . In any dependency may be also before a commissioned
military officer; justice or master must attach certificate of court
clerk.
Actions. The common law forms of action and pleadings are used .
but are in some respects modified by statute . Non-resident plaintiffs
must give bonds for costs.
Administration of Estates is had in the county courts, except
in some larger countries where probate courts are established . Six
weeks notice must be given for proof of claims . Claims not presented
within one year from date of letters shall be barred unless creditors
find other estate not inventoried or accounted for within that time.
Infants, persons of unsound mind, persons without the United States
in the employ of the United States or of this State have one year
to exhibit claim after disability removed.
Administration of intestate estate is granted, 1st, to surviving
husband or wife, 2d, to child, 3d, to father, 4th. to mother, 5th, to
brothers, 6th, to sisters, 7th, to grandchildren, 8th, to next of kin,
9th, to public administrator or any creditor. A relative entitled
to administer may nominate a competent person to be appointed
in his or her stead. Preference and right to nominate must be exercised within sixty days, otherwise public administrator shall act.
the court may select
to administer,
entitled
are equally
several
When
of half blood. Non-resident
to those
of whole
relatives
preferring
executors and administrators may sue in this, State.
Affidavits may be taken or oaths administered by any judge, master
or notary public.
police magistrate,
justice, to
clerk of court,
in chancery,
be made out of the State, may
or required
oath authorized
Any
be administered by any officer authorized by the law of the State
and if such officer have a seal, his certifiadministered,
it is his
whereunder
official seal that he is authorized by law to administer
cate
said oath, shall be received as prima facle evidence of his authority
to administer oaths .
Aliens . By statute of July 1 , 1897, all aliens may acquire and
hold, and convey, or devise, or otherwise allenate real property, subject to certain provisions and restrictions .
Arbitration. The parties to any sult pending in any court of
record may agree to arbitrate, whereupon an order to that effect
. about to commence suit to recover a claim fraudube entered
will
One
Arrest.
lently incurred or where a debtor has fraudulently concealed of
disposed of property may have caplas issued for his arrest.
Attachment. The writ may Issue out of courts of record on
claims exceeding $ 20, when the debtor is non-resident; conceals himself, or stands in deflance, so that process can not be served on him ;
or has departed from this State with the intention of removing his
effects therefrom, or if about to do so ; or has, within two years.
fraudently conveyed, assigned, concealed , or disposed of his property.
or a part thereof, so as to hinder or delay creditors ; or is about fraudu
lently to conceal, assign, or otherwise dispose of his property or
effects, so as to hinder or delay creditors ; or the debt was fraudulently
contracted by statements in writing . Before writ can issue, plaintiff, his agent, or attorney, must make affidavit to one or more of
these facts, and give bond, in double the amount of claim. (See
Garnishment.)
Banks. There is nothing special in the statutes about national
banks except that shares of stock in such as may be located in this

BANKING AND COMMERCIAL LAWS -ILLINOIS
State are listed and taxed as shares in state banks and as other personal property, even though the owner be non-resident. Each bank
is required to keep a list of names and residences of its stockholders.
Banking associations may be formed to do general banking except
Issuing bills as money: may make loans on personal and real estate
security and accept and execute trusts. Capital required is graded
Cities of 5,000 or less, $25,000 ; up to 10,000, $ 50,000 ; up to 50,000.
$100,000, and 50.000 or more, $200,000 . The state auditor issues
certificate of organization, which must be recorded in proper county.
Any impairment of capital must be made good on notice from him.
June 4 , 1897 , the statute was amended , as follows: "The total
Ilabilities to any association , of any person, or of any company or
firm , for money borrowed , including in the liabilities of a company
or firm the liabilities of the several members thereof, shall at no time
exceed one-tenth part of the amount of capital of such association
actually paid in. But the discount of bills of exchange drawn in
good faith against actually existing values , and the discount of commercial or business papers actually owned by the person negotiating
the same, shall not be considered as money borrowed . Every such
loan made in violation of the provisions hereof, shall be due and
payable according to its terms, and the remedy for the recovery
of any money loaned in violation to the provisions hereof, or for
the enforcement of any agreement, collateral or otherwise, made in
connection with any such loan. shall not be held to be Impaired ,
affected, or prohibited by reason of such violation , but such remedy
shall exist notwithstanding the same. But every director of any
such association who shall violate, or participate in. or assent to
such violation , or who shall permit any of the officers, agents or
servants of the association to violate the provisions hereof, shall
be held liable in his personal and individual capacityfor all damages
which the association, its shareholders, or any otherbanker.
person shall have
sustained in consequence of such violation." A
officer, or
person doing banking who receives deposits knowing concern to be
insolvent shall.if deposit be lost,be fined double the sum lost and
may be imprisoned one to two years.
Collaterals. There is no special provision relating to them.
Conditional Sales, Consignments. Conditional sales and secret
agreements are good as between the parties, but where personal
property is sold and possession given to vendee conditions or secret
lens are held fraudulent as to creditors and purchasers in good faith.
The safe course is to preserve a lien by chattel mortgage (see Chattel
Mortgages) . Consignments of goods for sale if in good faith are not
within the rule and the consignor is protected . If a commissoin
merchant or other person selling on commission shall convert to
his own use or fail to pay over proceeds on demand where the property has been so consigned he is liable to fine or Imprisonment or
both and for double value of the property.
Conveyances. A person may convey title to lands, although
not in possession, and although the same be in adverse possession.
No estate in joint tenancy, except to executors and trustees , is created
by deed unless it be expressly so declared, otherwise it will be a
tenancy in common. The words "conveys and warrants" are sufficlent to convey title in fee simple and to warrant that the grantor
was lawfully seized with full right to convey; that the land was free
from incumbrance, and that grantee have quiet and peaceable possession, and that grantor shall defend title. The words, "conveys
and quit claim" are sufficient to convey all the grantor's interest.
The words " mortgage and warrant" are sufficient to mortgage the
fees with full covenants of general warranty. The homestead right
is not waived except apt words be used. A married woman above
of
in any deed, mortgage, powerthe
eighteen joining with husband be
bound in respect to her title
attorney or other writing, shall
same as if she were single . No covenant or warranty is broken by
the existence of a highway upon the land conveyed . (See Acknowledgments . )
Corporations are formed under the general statute for lawful
purposes except banking, insurance, real estate, brokerage
. rallroads,
and money-lending; separate acts provide for these. At least onehalf of capital stock must be reported paid in, and also what disposition has been made of that not paid in, before charter issues. Stock
holders vote in person or by proxy, each share one vote ; shares
not less than $ 10 or more than $ 100 ; cumulative voting allowed;
final certificate or charter to be recorded in company's own county
may hold only necessary real estate; make by-laws and control business; no stock liability except for unpaid par value ; directors and
officers who assent to indebtedness exceeding amount of capital
stock are liable for the excess : stock holder may examine books ; certificates assignable in blank and pass by delivery: stock is personalty
and may be attached or taken in execution unless certificate has
been sold or pledged. Every corporation except building and loan,
railroad, banking, and insurance shail In each February report to
secretary of state location of office, names and residences of officers,
when terms expire and nature of active business. Failure to do
so is prima facle evidence of being out of business and secretary
shall record cancellation of charter, and shall file annually with
recorder of each county, list and particulars of such reports, and all
cancellations ; may be reinstated within one year by paying $ 20, and
making proper reports to date.
A Foreign Corporation other than insurance, building and loan,
and surety company shall make sworn application to secretary of
state, naming Its proposed business, amount of capital stock and
whether it is to operate in any other state or country, the proportion
of its business to be done in this State, what assets and value thereof
will be used in this State. the amount paid in upon its capital stock
and if any stock is not paid in , what disposition is to be made therof:
names and residences of president, secretary and treasurer, location
of office, name of attorney in fact who can be served with summons,
and
if required by the secretary of state, names and residences
of
all stockholders
. Shall file copy of charter or certificate. It has no
other or greater powers than domestic corporations.
Courts. Terms and Jurisdiction . Circuit courts have original
jurisdiction in all cases in law and equity, and hold two or more
terms in each year, in each county. County courts have probate
jurisdiction (except in counties where probate courts are established) ,
and have also a limited civil ( $ 1,000) and criminal jurisdiction .
Provision is made for city courts of special civil and criminal jurisdiction. Justices of the peace have jurisdiction limited to $200.
Appellate courts and a supreme court exercise appellate jurisdiction .
Cook County has a special superior court of jurisdiction concurrent
with that of circuit courts, and has also a special criminal court.
each with monthly terms. The municipal court of Chicago is a court
chief justice and twenty -seven associate Judges .
with a courts,
record,
of
munic
These
ipal
take the place of the justice of the peace
of
Chicago , but not the county of Cook outside
city
courts in the
the city of Chicago.
Days of Grace are abolished . (See Negotiable Instruments .)
Depositions . The testimony of any witness residing within this
State more than 100 miles from the court, or not residing in this State,
may be taken by the party desiring to use the same, under a commission, upon written interrogatories. The deposition of a nonresident witness may be taken on oral interrogatories, upon giving
ten days' notice, and one day for every 100 miles traveled from
the court to place of taking same. When the notice has been served
for taking the deposition of a non-resident witness on written inter-

1397

rogatories, the adverse party may, upon giving three days' notice.
have a deposition Issued to take the deposition upon oral interrogatories. Commission may issue to any judge, master in chancery.
notary or justice, or to any competent or disinterested person as
commissioner. Where deposition is taken on written Interrogatories,
neither party, his attorney, nor other person interested . is allowed
to be present, nor to dictate or write any deposition. When a party.
having given notice to take depositions upon oral interrogatories.
shall fail to take the same, and the opposite party shall attend either
for each
in person or by attorney, he shall be entitled to $2 per day
day of such attendance, and to 6 cents for every mile necessarily
traveled in going and returning.
Descent. Real and personal property of intestates, after payment
of debts, shall descend as follows: 1. To children and their descendants : 2. If no child, nor descendant of child, and no widow or surviving husband, then to parents, brothers, and sisters : 3. If there is
a widow or surviving husband and no child, or descendants of child.
then one-half of the realty and all the personalty to the widow or
surviving husband, and the other half as in other cases where there
is no child or descendant of such; 4. Where there is a widow or
surviving husband and also a child or descendant of such, the
widow or surviving husband shall have one-third of all personalty;
5. If there is no child or descendant of such and no parent, brother,
or sister, or descendant of such, and no widow or surviving husband, estate shall descend to next of kin. by the civil law; no
representations
among collaterals
excepting
the descendants
with kindred
of brothers and sisters,
between
and no distinction
of whole
and half blood ; 6. If there be widow or surviving husband and no
kindred, estate descends to widow or surviving husband : 7. If no
kindred and no widow or husband surviving, the estate shall escheat
to the county where estate or the greater portion thereof is situated .
An illegitimate child is heir to its mother and any maternal ancestor
and any person from whom its mother could inherit. An illegitimate child becomes legitimate if the parents inter-marry.
Divorces may be granted for impotency; former wife or husband
living: adultery : desertion or habitual drunkenness two years ; attempt
on the life of the other by poison or other means showing malice;
extreme and repeated cruelty : conviction of felony ; or other infamous
crime . Residence In State one whole year next before filling petition
required, unless the offense was committedbrought
in this State
or whilst
one or both resided herein. Suit must be
in county where
complainant resides and process may be directed to any county
in the State.
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
be completed after death,
for in lifetime, the title of which may
are subject to dower. No dower as against mortgage for purchase
surplus
money, nor mortgage made before marriage, except as to theprovision
remaining after payment of incumbrance. If will makes
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 per week exempt from garnishment to any one who
is the head of a family residing with the same. The party bringing
sult shall first make demand in writing for the excess of wages above
exemption. No property exemption is allowed when the debt is
for the wages of laborer or servant. Wages are preferred in case
debtor is closed by legal proceedings. Wages earned outside of
State exempt, where cause of action arose out of State, unless debtor
is personally served with process in the State.
Fraud. It is criminal fraud to attempt to obtain insurance money
wrongfully; to issue, sell, transfer or pledge any false, fraudulent or
simulated 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 personal 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 fraudholder.
or circumvention to
be executed
is vold
even in hands
of innocent
Frauds and Perjuries. No executor or administrator is llable
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 anofher, or any agreement upon consideration of marriage or any agreement that is not to be performed in one
year, unless the agreement is in writing signed by him or by some
one authorized. No contract for the sale of lands or any interest
therein for a longer term than one year is binding, unless in writing
signed by the party or some one authorized by him, in writing, to
sign for him. Any gift, conveyance, or transfer of, or charge upon
any real or personal estate made with intent to delay or defraud
creditors or other persons, and any evidence of debt given, suit commenced, decree or 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 implications or operation of law,
Garnishment. Process may issue upon judgment, and in attachment, 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 distribution 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

1398

BANKING AND COMMERCIAL LAWS- INDIANA

Husband and Wife. If sued together she may defend for her
own right, and if either neglect to defend , the other may defend for
or defend in his
both. If he desert his family, she may prosecute
name, and he has the same right if she desert. Neither is liable for
or
debts of the other before or after marriage, nor shall the earnings
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. If 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
writing : on money lent or advanced for use of another; on money due
on settlement of account from day of ascertaining balance; on money
received to use of another and retained without owner's knowledge;
on money withheld by unreasonable and vexatious delay, and on
judgments. In computations of time, interest, and discounts upon
negotiable instruments, a month is construed to mean a calendar
month, and a year to consist of twelve calendar months; and for any
number of days less than a month a day is considered a thirtieth part
of a month.
Judgments of courts of record are a lien on real estate situated in
the county, for seven years, and may be made a lien on real estate in
any other county, by filing a transcript thereof in that county. When
execution is not issued within one year. It thereafter is no lien but
execution may issue within any time within seven years, and shall
become a lien from its delivery to the proper officer. Judgment of
court of record may be revived by scire facias at any time within
twenty years. A judgment of a justice of the peace may be made
a lien on real estate in any county by filing a transcript thereof in the
circuit court.
A federal court judgment is a lien on real estate in the county where
rendered and becomes a llen 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 boarding 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 llen upon horses, carriages, and harness
for proper charges for keeping. Agisters and persons keeping or
pasturing domestic animals have a lien for proper charges . Attorneys
at law shall have a lien upon all claims, demands and causes of action
including claims for unliquidated damages which may be placed in
their hands by clients for suit or collection for the amount of any fee
which may have been agreed upon, or for a reasonable fee for the
services of such attorneys rendered or to be rendered on such suits.
claims or demands; provided, such attorneys shall serve notice in
writing upon the party against whom their clients may have such
suits, claims or causes of action, claiming such lien and stating the
interest they have in such suits, claims, demands or causes of action.
Limitation of Suits. Action for slander or libel, one year.
Damages for injury to person, false imprisonment, malicious prosecution, 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 writing on any bond, bill,
note, lease or contract within or after said period ten years, then limitation extended ten years longer. If cause of action arises out of
this State, and by the laws of that
action can not
maintained , no action can be maintainedState
here. Judgment of becourt
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
may be 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; len is then good for three
years or until debt matures if within three years, but may be extended
if
parties
file docket
in recorder's
office andwas
with
justice,anor amdavit
his successor,
onshall
whose
the mortgage
entered,
stating mortgagee'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 Saturday. Fraud
and circumvution in procuring evecution 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 seasonable time after its last negotiation.
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 .
Protect 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 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 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.
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 wrongfully 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 property 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 .
Delinquent 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, and during third six months, the tax and
three 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 7 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 wills may be made by males of twenty-one and females
of eighteen. Must be signed personally or by direction of testator
in 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 testator the
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 filled 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 coples duly proven from the 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
THE LAWS OF INDIANA
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Messrs . PICKENS, MOORES, DAVIDSON
AND PICKENS, Attorneys at Law, Indianapolis.
(See Card in Attorneys' List.)
Acknowledgments. All conveyances of real estate. except leases
for less than three years, must be in writing, and acknowledged and
recorded within forty-five days from their execution or they will not
bind third parties. Within the State acknowledgments may be taken
before a judge or clerk of a court of record , justice of the peace, auditor

BANKING AND COMMERCIAL LAWS- INDIANA
recorder, notary public, member of the general assembly, or mayor
of a city, and in other states and territories before the Ilke officers,
or a commissioner of deeds for Indiana. In any foreign country,
before a minister, chargé d'affaires or consul of the United States.
If such acknowledgment or proof is in some other than the English
language, or is not attested by such official seal. It must be accompanied by the certificate of an officer of the United States, to the
effect that It is duly executed according to the laws of such foreign
country, and that the officer has legal authority to certify to the
proof or acknowledgment and the meaning of his certificate, if made
in a foreign language. Wife must join in deeds and mortgages of
husband's lands in order to carry her inchoate one-third interest in
husband's lands. No separate acknowledgment of wife necessary in
order to convey her inchoate interest in husband's lands, although
she must acknowledge.
Actions. The distinctions between law and equity are abolished .
The statute provides but one form of action. Pleadings are governed
by code. Non-resident plaintiffs must give bond to secure costs.
Administration of Estates. Except in Marion County, which
has a separate probate court, the circuit court has exclusive probate
jurisdiction. In cases of intestacy letters are granted in following
order, 1. Widow or widower. 2. Next of kin . 3. Largest resident creditor. Letters of administration shall be granted in the
county, 1. Where intestate was inhabitant at time of death. 2.
Where, not being inhabitant of the State , he leaves assets. Where
an intestate. not being an inhabitant, shall die out of the State,
leaving assets in several counties, letters may be granted in any one
of the counties in which such assets may be at time of death; and
the administration first lawfully granted shall extend to all of the
estate. Letters cannot issue to a married woman without her husband's consent in writing. Such consent makes husband jointly liable
with wife. Preference is given to foreign executor of a decedent
not an inhabitant of State, if, before letters are granted in this State
it appears that proper letters have been granted in another state,
except there be resident creditors, iegatees and heirs entitled to distribution, who are inhabitants of the State. No action shall be
brought against an estate for any claim against the decedent; but
the holder thereof, whether the claim be due or not, shall file a succinct and definite statement thereof in the office of the clerk of the
court, setting forth all credits to which the estate is entitled , and
accompanied by the affidavits of the claimant, his agent, or attorney,
that the claim is just and wholly unpaid . If claim be secured by a
lien. the 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 acknowledgments (see above) . Date of expiration of officer's commission
must be 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. Allens.
whether resident or not, may own real estate not exceeding 320 acres ;
lands in excess of that amount they must convey within five years or
suffer escheat as to such excess .
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
subject 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 bona fide creditors.
This trust is administered under the direction of the county court.
Dividends are allowed on all claims allowed by the trustee or court.
Debtor is not discharged from his 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 be
served upon him. An affidavit is required . and a bond to pay damages if the proceedings be wrongful or oppressive . Creditors who fle
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 be collected by attachment, or garnishment,
when creditor, debtor, and person owing for earnings intended to
he reached are all within the jurisdiction 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
private
banking
applies must
to any
who $may
usenot
themore
wordthan
" bank"
in
his business
. Capital
at least
be one
10,000,
onethird 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
worth of partners to be double capital paid in. names
officers . netList
of capital,
of officers must be posted in bank. Two reports of
resources
and
liabilitie
for each year by auditor
s are
published in local newspap
er. called
Examination of bank made and
at least
annually by auditor. Statement of property held in trust by bank
recorder's office. Depositors have lien on
must
filed in county
assets be
. Jurisdict
interested is obtained by
ion over all persons
process served on officer in charge.
Banks, Savings . Governed by a general statute which regulates
in minute detail the investments and conduct of business . Savings
banks
mayand
purchase,
hold, and
real estate
for thehouse;
following
purposes,
none other:
For convey
the location
of banking
real
estate mortgaged to it in good faith for money loaned, or upon which
It shall have purchased a mortgage; real estate taken upon judgments
and decrees on behalf of the bank, or purchased to prevent loss on
claims held by the bank.
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
80. 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 liabilities at the close of business on any past day to be by the auditor specified . The report so
required must be published in a newspaper where the bank is established, or, if there is no newspaper in the place. then in one pub-

1399

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 condition. Any bank failing to make such report shall be subject
to a penalty of $ 100 for each day that it delays to make and transmit
the same.
Bills of Exchange and Promissory Notes. No grace is allowed .
Damages for protest on bills upon any person at any place out of
this State, but within the United States, 5 per cent on bills drawn
upon any person at any place without the United States, 10 per cent
Promissory notes payable at a bank in this State, and bills of exchange,
are governed by the law merchant. Promissory notes not payable
at a bank within the state are subject to any setoff maker may have
against payee, or any subsequent holder, accruing before notice of
assignment. On these, maker must be exhausted before indorser can
be sued . Protest is not necessary to hold indorsers of such notes.
but to hold them maker must be sued at first term of court after
maturity, unless it can be shown that he was insolvent at the time of
such maturity. For all purposes of presenting for payment or
acceptance, for the maturity and protest, and giving notice for the
dishonor of 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 Year's day; July
4th , December 25th, commonly called Christmas day, and any day
appointed or recommended by the President of the United States or
the Governor of the State of Indiana as a day of public fast or thanksgiving; February 22d, commonly called Washington's birthday, and
May 30th, commonly called Memorial day, the first Monday in September, called Labor day, Feb. 12th, and the day of any general
election, are made holidays by statute; and all commercial paper,
falling due on either of said holidays, shall mature on the next succeeding business day. Saturday afternoon is a legal half holiday in
the city of Indianapolis, and may be made so by act of bankers in
other cities of over 35,000 population.
Chattel Mortgages. Chattel mortgage on personal property left
In the hands of the mortgagor with power to sell must stipulate that
the money received by the sale be applied to the payment of the
mortgage debt, and should be drawn in the form of an absolute bill
of sale; must be acknowledged in the same manner as prescribed for
the acknowledgment of deeds, and recorded within ten days from
execution. and in the county where the mortgagor resides. An
assignment of goods, by way of mortgage , where such goods are not
delivered to the mortgagee, shall not be valid against any other person
than the parties thereto , unless such mortgage shall be acknowledged ,
and recorded within ten days after the execution thereof. Where
delivery of the chattels to the mortgagee occurs at the time, record
is unnecessary. A mortgagee of household goods can not sell mortgaged property except under a judicial proceeding in the circuit or
superior court.
Conveyances. Lands in this State may be taken, held , conveyed .
devised , or passed by descent, by or from any citizen of the United
States; or by or from any allen (see Aliens) , with some provided
exceptions as to descent or devise. Lands which may have come by
descent or purchase to the wife of an allen, may be held, conveyed,
devised and passed by descent by a.d from her, notwithstanding the
fact of her residence with her husband 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 lincal and collateral warrantles
is expressly abolished : a covenant or agreement of any person leaves
heirs and devisees answerable thereon 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 description
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
representatives of title perfect and unincumbered in the grantor.
When a deed purports 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 instrument 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 mortgage 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 considerafion, unless recorded in the recorder's office of the county where
such lands are situated, in forty-five days from its execution. (See
Acknowledgments, Married Women . )
Corporations. Domestic Corporations. Corporations are created
only under general statutes. This is done by means of articles of
association, filled with the secretary of state, and the recorder or clerk
of the county, as provided by statute. The liability of stockholders
varies according to the nature of the corporation in question and the
law under which it was organized. In the corporations which were
in existence November 1 , 1851 , and which accepted the terms of the
act of March 6 , 1883, stockholders are liable, in case of insolvency.
for a sum at least equal to amount of stock held at time the debt
was contracted . In most corporations, stockholders who have paid
for their stock are not liable for debts of the company. However,
there is liability In some cases for labor and services of employes.
Shares of capital stock in a private corporation are subject to attachment.

BANKING AND COMMERCIAL LAWS - INDIANA
T
acquired by gift, devise, or descent. Illegitimate children inherit
Foreign Corporations . Agents of foreign corporations, before
entering upon the duties of their agency in this State, shall deposit from the mother same as if they were legitimate, and vice versa
Tenancy by the curtesy and dower are abolished , and widows take
in the clerk's office of the county, where they propose doing business,
one-third of the real estate in fee simple, unless the property is worth
the power of attorney, or appointment, under which they act. They
shall also file a duly authenticated order, resolution or other sufficient
over $ 10,000, in which case, as against creditors, she takes one-fourth
authority of. the board of directors authorizing citizens or residents
only; and where the real estate is worth over $20,000, one-fifth only
of this State having a demand against such corporation arising out as against creditors, but as against other heirs she takes one-third
of any transaction in this State with such agents to maintain an
in fee simple, regardless of value, except where there is but one
child, in which case each inherits one-half. A second or subsequent
action in respect to the same in any court of this State of competent
Jurisdiction, and authorizing service of process on such agent, and wife, however, takes only a life estate in her husband's lands, if there
that such service shall authorize judgment and all other proceedings
be a child or children by a previous marriage, and none by such
widow . Other special provisions of the statute are too extensive to
against such corporation . Contracts made by such agents shall not
set out. The estate of a person dying intestate without kindred
be enforced in any court of this State until there has been a compliance
with the above provisions. Failure of a foreign corporation to comcapable of inheriting will escheat to the State for the support of the
common schools.
ply with these provisions will not bar- but will abate such action.
Any person who shall, directly or indirectly, receive or transmit
Divorce. Petitioner must have been a bona fide resident of the
money or property to or for such corporation, or make any contract,
State for two years previous to filing the complaint, and of the county
or transact any business for or on account of any such corporation,
for
six months, and this must be proved by two resident freeholders
shall be deemed agent. This, provision does not apply, however,
and householders of the State. An affidavit of the petitioner must
to persons acting as agents for a special or temporary purpose or for
accompany
the petition stating the length of his residence in the
purposes not within the ordinary business, nor does it apply to
State, the place of such residence, and his occupation. Divorces are
attorneys at law. Any person acting as agent of a foreign corporagranted for the following causes: Adultery, except where petitioner
tion, who shall neglect or refuse to comply with the foregoing prohas connived at the offense or condoned it, or has given defendant
visions, is liable to a fine in any sum not less than $50 . In 1879 it
the same cause for divorce : impotency, existing at time of marriage :
was enacted that: Every foreign corporation now doing or transabandonment for two years ; cruel and Inhuman treatment: habitual
acting, or that shall hereafter do or transact, any business in this
drunkenness; failure of husband to provide for his family for two
State, or acquire any right, title or interest in or lien upon real estate
years; conviction of an infamous crime subsequent to marriage.
in this State, that shall transfer or cause to be transferred from any
Divorce may be granted for a cause arising outside the State. If it
court of this State to any court of the United States, save by regular
appear by affidavit of a disinterested person that the defendant is
course of appeal after trial in the State courts, any action commenced
non-resident, the plaintiff must make and file his affidavit stating
a
by or against such corporation in any court of this State by or against
the residence of the defendant, if known, and if unknown, that must
any citizen or resident thereof or that shall commence in any court
be stated . Notice is given to non-residents by publication for three
of the United States in this State, on any contract made in this
successive weeks in a newspaper published in the county, and if the
State, or liability accrued therein, any suit or action against any
residence of the defendant is known the clerk shall mail to such
citizen or resident of the State of Indiana , shall thereby forfeit all
defendant a marked copy of newspaper containing such notice.
right and authority to do or transact business in this State, or hold
Persons obtaining a divorce on publication are forbidden to remarry
real property or lens thereon, and all contracts between such corwithin two years. Separation from bed and board for a limited
porations and citizens and residents of this State made after the time may be decreed .
passage of this act shall be rendered void , as in favor of such corDower. (See Married Women .)
porations, but enforceable by such citizen at his election. The provisions of the foregoing section are made conditions upon which
Executions may issue at any time within ten years after judg
such corporations may be authorized to do business, or hold titles to ,
ment
and are returnable in 180 days. From a court of record may
or lens on, real estate in this State. By the act of 1901 , foreign
issue to any county in the State. Are a lien on personal property
corporations are required to designate an agent in this State upon
within
the county from the time they are placed in hands of officer.
whom legal process may be served; to have an office where proper
The lens upon personal property attach in the order in which the
books of account may be kept. By act of 1907 foreign corporations
officer
receives
them . When levy is upon real estate the dates of
desiring admission to state must make verified statement to secrethe judgment control the right to participate in the
proceeds, and
tary of state showing: articles of incorporation, business intended
they must be applied according to their priority. Personal property
to pursue, capital stock, proportion of its business carried on in this
taken
in
execution
may
be
left
with
execution
defendant
by the
State, amount paid in on capital stock, and answers to other intergiving to the officer of a delivery bond with sufficient surety ; debtor
rogatories propounded by the secretary of state, and shall pay a
may,
by
giving
sufficient
freehold
sureties,
have
a
stay
of
execution
fee of $ 25 on first $ 10,000 of assets used in Indiana, $ 10.00 for each
on any sum exceeding $ 100, for six months. Where the sum is less
additional $10,000. Annual report must be filed and fee of $ 1 paid .
than $ 100 , the stay is not so long, varying with amount of jdgment.
Foreign corporations may not hold real estate except such as may
Lands sold under execution may be redeemed within one year by
be necessary for proper carrying on of its legitimate business.
the owner, mortgagee or person having a lien thereon, the owner
Courts. Terms and Jurisdiction . The circuit court is the only
retaining possession during the redemption year and being llable for
reasonable rents and profits in case of failure fo redeem.
court of original general civil jurisdiction in the State. It has full
probate powers, except in Marion County, where there is a separate
Exemptions. Property up to $600 is exempt where debtor Is a
probate court . Superior courts have been established in many
resident householder. Resident householder is entitled to exemption
Counties. Justice's jurisdiction, $ 200. Party may confess judgment
as
well when in transit with his family and property as when perbefore a justice of the peace for $300 . When a written obligation for manently
settled. The debtor must file a schedule of all of his
money binds more than one party the justice of the peace may issue property, and select the property claimed, which is then appraised.
process to constable of any county in the State where party resides.
Contract waiving exemption is void. Pension money in transit to
The supreme court has no original jurisdiction . It sits at Indianapolis. pensioner is exempt, but when received by him and invested in other
property is no more so than any other property. One month's wages
The appellate court has final jurisdiction in many cases.
also exempt if the debtor is still employed.
Days of Grace are no longer recognized .
Fraud. Assignments, in writing or otherwise, of any property
Depositions. Depositions may be taken anywhere in the United
made or suffered with Intent to hinder, or defraud are vold as to the
States without a commission , before any judge, justice of the peace
persons
defrauded . The question of fraudulent intent is a question
notary public, mayor, or recorder of a city, clerk of a court of record,
of fact.
or commissioner appointed by the court to take depositions. PerFrauds Statute of. The following contracts, if enforcible in court,
son taking deposition must not be of kin to either party or interested
be in writing and signed by the party to be charged : 1. To
in the action . When taken outside of the United States they shall must
upon any special promise, to
charge an executor orofadministrator,
be taken pursuant to an order of the court, under a commission, with
his own estate. 2. To charge any person.
answer damages out
such reasonable notice of the time and place of taking the same as
any special promise, to answer for the debt, default, or misupon
the court shall require, and they shall be certified and returned by
carriage of another. 3. To charge any person, upon any agreement
the commissioner in such manner as the court shall direct . Notice
or promise, made in consideration of marriage. 4. Upon any conof the taking of the deposition should be served upon the adverse
tract for the sale of land (except loan not exceeding the term of three
party or his attorney, specifying the cause, the court or tribunal of years)
. 5. Upon any agreement not to be performed within one
trial, the time and place of taking, and the names of the witnesses.
from the making thereof. 6. Sale of goods exceeding $50 in
year
Reasonable time shall be allowed for the attorney so served to comunless part payment or part delivery be made.
value,
municate with the client, and for travel to the place of taking, excludGarnishment. (See Attachment.) Garnishment Is a remedy in
ing the day of service , of the taking, of and intervening Sundays.
ald
of
attachment.
Upon any personal action arising out of contract
The deponent shall be first sworn according to law. He shall then
any person may be summoned as a garnishee defendant upon an
be examined by the party producing him, and then by the adverse
affidavit
that
official
good reason to believe that any person
party, and then by the officer, if he see cause. The deposition shall named has property ofhas
the defendant in his possession or under his
be written down by the officer, by the deponent , or by some disin- control, or that he is indebted
to the defendant, or has control or
terested person. in the presence and under the direction of the officer,
of money, property, credits, or effects ; that he has any share
and after the same has been carefully read shall be subscribed by agency
or interest in the stock of any association or corporation, and all
him . The Jollowing facts shall be stated in a certificate to be annexed
money or property in the hands of the garnishee defendant is bound
by the officer: 1. That the deponent was sworn according to law. from
the time the summons is served upon him. Resident house2. By whom the deposition was written, and If written by deponent
holders
entitled to an exemption of $600 in garnishment proor some disinterested person , that it was written in the presence and ceedings,are
as in all other cases. Wages of non-residents, to the amount
under the direction of the officer. 3. Whether the adverse party of $25, and
of resident householders to the extent of one month's
attended . 4. The time and place of taking , and the officer shall wages, are exempt
from execution so long as the defendant remains
sign and attest the certificate , and seal the same, if he have a seal of
office. If he have no seal, his certificate shall be authenticated by In the employ of the garnishee. Indiana claims can not legally be
or taken out of the State for prosecution, and suits Instituted
the certificate and seal of the clerk or prothonotary of any court of sent
elsewhere in violation of this prohibition may be enjoined and the
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 offender be criminally prosecuted .
sufficient envelope and himself post, or express, or deliver the same
Holidays. (See Bills of Exchange and Promissory Notes .)
to the clerk of the court in which the action is pending, endorsing
Husband and Wife. (See Married Women.)
on the envelope the names of the parties and of the court and of
Interest.
The legal rate is 6 per cent, but interest may be taken
the witnesses whose depositions are enclosed . Adjournments may be In advance . No
agreement to pay a higher rate is valid unless the
had from day to day after the deposition has been begun, and for same be in writing,
and in such case it is not lawful to contract for
longer periods, upon written consent of the parties, which written
more than 8 per cent . When a greater rate is contracted for, the
consent must be attached to the deposition . Adjournments should
contract is void as to all interest in excess of 6 per cent. is usurious
be noted at the place in the deposition when they occur. A narrative
and Illegal, and the excess may be recouped by the debtor whenever
form may be used. A witness identifying a written instrument
It has been reserved or paid before the bringing of the suit. Interest
should attach it to his deposition, making it a part of his answer.
on Judgments runs from the date of the verdict or finding, at the
Descent. The real and personal property of any Intestate shall rate specified in the original contract, not exceeding 6 per cent, and
descend to his or her children equally: and posthumous children if no contract has been made 6 per cent is allowed ."
inherit equally with those born before the death of the ancestor.
Judgments of courts of record are a llen upon all real estate of
Children of deceased children take the share which would have
defendant within the county for ten years. Judgment may be
descended to the father or mother; and grandchildren, and more
obtained at the first term of the court, after process has been served
remote descendants, and other relatives , lineal and collateral , inherit
on debtor ten days prior to the first day thereof. Judgment in justice
by the same rule, excepting that If the heirs are all grandchildren
court becomes a lien on real estate of judgment defendant from time
they inherit equally. Where there are no heirs as aforesaid , oneof filing a transcript in office of the clerk of circuit court. A certified
half of the estate goes to the father and mother as joint tenants, or topy
of any judgment rendered by the circuit court of the United
to the survivor, and the other half to the brothers and sisters and
States for district of Indiana may be filed with the county clerk.
to the descendants of such as are dead, as tenants in common. If
Liens. Liens are granted by statute to attorneys ; to persons
there be neither father nor mother, the brothers and sisters, and
holding claims against watercraft on account of supplies furnished or
the other descendants, take the estate as tenants in common; or,
work done: also for demands for damages arising out of freight conper contra, the father and mother as joint tenants of the survivor.
tracts, or for willfulness or negligence of the master, owner, or agent.
Kindred of the half-blood inherit equally with those of the wholeor out of any contract relating to transportation, and for injuries to
blood in property purchased by the ancestor, otherwise, as to property
1400

BANKING AND COMMERCIAL LAWS- IOWA
persons or property: also to employes of any corporation as against
any of its corporate property or earnings for labor done ; also to
keepers of livery stables and all persons engaged in feeding stock, for
the feed and care bestowed upon the same ; also to contractors, subcontractors, mechanics. journeymen, laborers, and all persons performing labor or furnishing material or machinery for erecting, laboring, repairing or removing any house, mill, manufactory or other
building, bridge, reservoir, system of water-works, or other structure,
known as a mechanic's lien; also to bailees and tradesmen for their
valid and reasonable charges in the construction, repair, or alteration
of any article of value; also to the ballee or keeper of personal property
for any feed or care bestowed by him upon such property ; also to
forwarding and commission merchants on goods which may have
remained in store for one year or more. Judgments rendered in
any county in the State are a lien upon the real estate situated in
such county for a period of ten years from the rendition thereof, and
judgments rendered in the federal courts are a lien upon any real
estate in the State for the same period. Provision is made by statute,
however, for the filing in the county where the real estate is situated
of a transcript of any judgment rendered in the United States courts.
The office of the clerk of the circuit court in each county contains
a public record known as the lis pendens record, in which notice of
the filing of complaints to enforce liens are required to be recorded,
and also in cases where real estate is seized by attachment or execution. 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 offcial 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 promissory notes, bills of exchange and other written
contracts for payment of money, ten years ; actions not limited by
written contracts, judgments of courts of
statute, fifteen years ; other
record and real actions, twenty years. Revivor: part payment or
Except in favor of sureties, the statute of
new promise in writing.against
the State.
limitation does not run
Married Women control their real and personal property.
husband is llable for the wife's debts contracted before marriageThe
to
the extent of the personal property
may receive from her, and no
further, and her lands are llable forhesuch
Indebtedness . A married
woman may devise her separate estate; may sell and transfer her separate 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
femme sole; and her husband is not liable for such debts, nor fora
Indebtedness created by the wife for Improvement of her separate
real estate. She can make leases of real estate for ferms 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 separate real estate. Her deed conveying her real estate,
her husband not joining, is absolutely void. She may sue as a femme
sole for any damage 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 vold : 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
been given her as presents: and other property to the amount of
$300, except
against indebtedness for the purchase money therefor. A widowastakes
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
;
if under $ 20,000 , and one-fifth, if
above that amount . one-fourth,
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 onethird of her real estate which the widow takes in fee, can not, upon
her marrying again, be effectively conveyed or mortgaged by her, if
there be a child or children , or their descendants, alive by the previous
marriage. Real estate which husband and wife hold by title made
to them as husband and wife, is held as an estate by entirety:
it can
not be taken for the debt of either; is not subject to the flen 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.
Mortgages. (See Conveyances .)
Power of Attorney must be executed and acknowledged , and (If
for
conveyance
of real
estate,
or to affect real estate) recorded, in
manner that
the the
same
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, if 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.
Replevin. When any personal property is wrongfully taken or
unlawfully detained, or, if taken on execution or attachment, is
claimed
by a third party, the owner or claimant may bring an action
for possession thereof. He may claim Immediate delivery upon
affidavit therefor, whereupon the sheriff takes possession of the
property, and if a delivery bond is given on behalf of the defendant
within twenty-four hours, the property 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 plaintiff 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 must file
bond in
cases.
all such
Replevin may also be had without bond, by
allowing defendant to retain possession of property pending suit.
Suits. (See Actions .)
Taxes. State , county , township , municipal , school , and road taxes
attach as a llen on real estate on March 1st of each year, and penalties
attach on first Monday In May in the next year. One-half of all
paid without penalty , if paid before first Monday of
may be
taxes othe
May;
r half , if paid before first Monday of November. Sales of
real estate for taxes are held on the second Monday of February , and
all lands on which taxes are delinquent for two years are offered .
Owner has two years in which to redeem, by paying the amount set
forth in the certificate of purchase, with all subsequent taxes paid,
and 10 to 25 per cent upon the whole sum, with legal interest from
the date of purchase or payment. Lands are sold for one year's
89

1401

delinquency, but the following year's tax (not yet delinquent) is
embraced in the amount of the sale.
Wills. Nuncupative wills, where property of more than the value
of $100 is bequeathed , are not valid , except as to the personal property
and wages of soldiers and sailors in actual service. A nuncupative
will must be reduced to writing within fifteen days after it shall have
been declared and proved by two competent witnesses who shall have
heard the testator request some of those present to bear witness
thereto . No will in writing is valid unless signed in the presence of
two or more witnesses by the testator, or by some one for him in his
presence, with his consent, and attested and subscribed by two or
more witnesses at his request, and in his presence and that of each
other.
SYNOPSIS OF
THE LAWS OF IOWA
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared andDesRevised
DALE
& inHARVISON
, Attorneys
at Law,
Moines.by (See
Attorneys'
Card
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.
Acknowledgments. All instruments affecting real estate, includIng mortgages, deeds 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, adminstration 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. 3. Claims filed within six months after the first
publication of the notice given by the executors or administrators
of their appointment. 4. All other debts . 5. Legacies and distributive shares . All claims of the fourth of the above classes not
filed and allowed, or if filed and notice thereof not served within
twelve months from the giving of the notice of appointment 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
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.) Afidavits 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 proceeding is statutary and must conform strictly to the statutes of Iowa.
Aliens. Non-resident aliens or corporations incorporated under
the laws of any foreign country or corporations organized in this
country, one-half of the stock of which is owned or controlled by nonresident aliens are prohibited from acquiring title to or holding any
real estate in Iowa, but the non-resident allen widow, heirs, or devisees
of an alien or naturalized citizen may hold the same for twenty years,
and if not sold within that time, escheats to the State. Aliens may
acquire property of any kind within a city or town or lands not exceeding 320 acres or stock in any corporation for pecuniary profit and may
alienate or devise the same, but this law does not affect personal
property. A lien holder may acquire title to the property embraced
in such len but real estate so acquired must be sold within ten years
after title is perfected in an alien, otherwise it will escheat to the
State.
Arrest. No person can be imprisoned for debt on either mesne
or final process, unless In case of fraud . Debtors, however, may be
ordered to appear before a court or record wherein a judgment has
been rendered , and if the debtor is about to leave the State, or conceal
himself, he may be arrested and compelled to give bond to appear
before the court for examination, and in the meantime, not dispose
of his property .
Assignments and Insolvency. General assignments not valid
unless for benefit of all creditors, when assent of creditors is presumed .
The debtor must annex to the instrument of assignment a sworn
inventory and list of creditors ; and such instrument must be acknowledged and all of the papers recorded like a deed of real estate. The
assignment vests in the assignee title to all property of the debtor,
Assignce must give bonds, prepare a verified inventory and valuation ,
and notify creditors by mall to le claims within three months.
All claims not filed within three months after notice published or
within such extended time as the court grants, not exceeding nine
months, including claims not yet due, can not be paid until all claims
filed within said time are paid. An assignment does not discharge
the debtor from his debts and liabilities, but only entitles creditors
to share equally in his estate. All claims filed must be itemized
and sworn to.
Attachments. An attachment, auxillary to the main case, may be
sued out upon any one of twelve ( 12) statutory grounds for a debt,
which is past due; or upon any one of four (4) statutory grounds
for a debt on contract, not yet due. A bond must be filed for three
times the amount claimed, if the action is founded upon contract,
otherwise, in a sum to be fixed by the court, If the action is not founded
upon contract. Garnishments may be effected under the writ of
attachment. Special attachments are permitted, to attach specific
personal property, in a few prescribed cases.
Banks. The banks organized under the laws of Iowa are respectively designated as savings banks and state banks.
Savings banks must have a minimum capital of from $ 10,000 to
$50,000, according to the population of the city or town in which
each is located . Each share must be of the par value of $ 100. The
statutory provisions must be consulted concerning the manner of

1402

BANKING AND COMMERCIAL LAWS- IOWA

organization, the issuance of and payment for capital stock, the items of personal property are exempt by statute. There are statutory
board of directors . quorum, voting by proxy, limitation of deposits.
provisions concerning the creation of liens on exempt real or personal
and the investment thereof, the loaning of funds, the cash reserve
property, and the assignment of exempt wages.
required, and the dissolution of such banks.
Fraud. In actions for fraud, heretofore solely cognizable in a court
State banks must have a minimum capital of from $25,000 to
chancery, the cause of action shall not be deemed to have accrued
of
$50,000, according to the population of the city or town in which until
the fraud complained of shall have been discovered by the party
each is located . Each share must be of the par value of $ 100 . The aggrieved
the exercise of due diligence. In actions brought by a
statutory provisions must be consulted for the particulars above judgment by
creditor to set aside a fraudulent conveyance of property
referred to on the subject of savings banks.
to the other and to subject said property to execution.
spouse
from one
Bills of Exchange. The negotiable instrument law recommended
either husband or wife may be compelled to testify against the other.
by the interstate commission on uniformity of law has been enacted
punishable by fine or imprisonment.
is
fraud
Gross
and is now law in Iowa. (For Grace, See Days of Grace .) A provision
Garnishments. (See Attachments .)
for the payment of exchange, in addition to the amount of principal
Husband and Wife. (See Married Women .)
and interest, does not render a bill of exchange non-negotiable.
Interest. By written contract. maximum legal rate. 8 per cent.
Collateral Securities. There are special statutory provisions
concerning the pledging of corporate stock, as security; and also Judgments draw 6 per cent, or such rate as is fixed by the contract
upon the subject of sales of collaterals by action in court and judicial on which the judgment or decree is rendered , not exceeding 8 per
cent per annum.
sale. Otherwise the subject is governed by the common law.
Open accounts draw 6 per cent after six
from date of last item; money loaned, money due, money
Conditional Sales. No sale, contract, or lease wherein the months
due on settlement of accounts, bear interest at 6 per cent per annum .
transfer of title or ownership of personal property is made to depend Contract for more than 8 per cent forfeits all interest and costs .
upon any condition, shall be valid against any creditor or purchaser
Judgments in the district and superior courts may be obtained
of the vendee or lessee in actual possession, obtained in pursuance
at first term after suit commenced , if undefended; an equitable
thereof, without notice, unless the same be in writing, executed
except one for foreclosure of mortgage, or mechanic's lien
by the vendor or lessor, acknowledged and recorded the same as action,
or for divorce, is triable at the second term after the case is at issue.
chattel mortgages.
Judgments
of the district court are liens on real estate owned by
Conveyances. No particular form is necessary for conveyances the debtor at
the time of rendition. If the lands lie in any other
or mortgages. The name of the parties, the description of the property,
county,
the time of filing therein an attested copy of the judgfrom
the consideration, the date, signature, and acknowledgment. is all
ment. Lien also covers all lands which defendant may acquire
that is necessary; as between the parties they are valid without within ten years from date of judgment, or upon which a levy is
being recorded . The wife must join with her husband in conveyances,
made after ten or before twenty years from the date of the judgment.
and a conveyance of the homestead is of no validity unless husband
but this lien dates only from the time of the levy. Judgments of
and wife concur in and sign the same joint instrument. A corporation superior
courts and justice of peace courts become liens on real estate
executes conveyances under its corporate seal, except where the by filing transcript in district court within county where obtained .
corporation has not adopted a seal; such conveyances must be and become liens in other counties in the same manner as if rendered
acknowledged by the proper officers.
in the district court.
Corporations. Private corporations, sole or aggregate, may be
Liens. These are mainly created by statute and are enforceable
formed for any lawful purpose. But there are special statutory In equity. In
a few cases, and under pecullar circumstances, equitable
provisions which must be complied with for the organization and liens on real estate
are established and enforced in equity.
government of insurance, banking, loan and trust, building and loan,
Limitations.
Actions, according to their subject matter, have
and railway corporations. In all cases, the articles of incorporation
must be acknowledged and recorded, in the manner provided by various periods of limitation, fixed by statute, extending from three
law, and approved by the secretary of state. With a few exceptions, months to ten years after the cause of action accrued. Actions upon
rendered in courts of record have a limitation of twenty
an incorporation fee of $25, plus $10 for each thousand dollars of judgments
upon the organization years. Dower rights and mortgages existing or created prior to
capital in excess of $ 10,000 must be paid,general
term of the life January 1 , 1885, are barred, unless now properly preserved in the
or renewal of a private corporation. The
of a private corporation is twenty years, renewable for a like term . recorder's office . Imperfect deeds by executors, administrators,
or guardians made prior to January 1 , 1885, are confirmed
Railroads, savings banks, and a few others may last fifty years, trustees,
in favor of grantees in possession.
also renewable.
Courts. Terms and Jurisdiction. The district court has jurisdicMarried Women may own in their own right, real and personal
tion of all actions, civil and equitable, and has criminal and probate property, and may manage, sell, convey, and devise the same by
jurisdiction. Superior courts may be established by the vote of will. Neither husband nor wife is liable for the debts or liabilities
the people in any city of 5,000 inhabitants. It has jurisdiction to lof the other incurred before or after marriage, nor are the wages,
try all violations of city ordinances, and the same criminal jurisdiction
earnings, or property of either, liable for the separate debts of the
as justice of the peace courts . It has jurisdiction to try and determine other. Contracts may be made by a wife, liabilities incurred , and
civil and criminal appeals and civil writs of error from justices of enforced by or against her, as if unmarried. Both husband and
the peace, situated in the township where the court is located . Has wife are liable for the expenses of the family, and the education
of the children.
the same jurisdiction as the district court to try all suits in law and
equity, except grant divorces, alimony, and separate maintenance,
Mortgages must be subscribed and acknowledged by the parties
and it has no probate jurisdiction . Transcripts from superior and
creating the lien and recorded same as deeds are foreclosed by equitable
justice's courts must be filed in district court to create a lien on real action.
The wife should join in the instrument, except mortgages
estate, and are then enforced as judgments of the district court;
purchase money, and mortgages upon non-exempt personal
justice's jurisdiction, $ 100 , or, by written consent of parties, $ 300. for
property . The mortgagor has one year in which to redeem real
The supreme court has only appellate jurisdiction and holds sessions
estate after execution sale, except as stated under the sub-title "Execuat Des Moines, January to May, from May to September (less vacations. " When a mortgage is paid off, satisfaction thereof must be
tion) , and from September to December.
made on margin of the record , or by satisfaction plece, acknowledged
Days of Grace. Every negotiable instrument is payable at the
and recorded . If no satisfaction is entered within thirty days after
time fixed therein without grace .
request in writing, the mortgagee forfeits $25 . (See Chattel Mortgages. )
(See Limitations.)
Depositions may be taken within the State, on notice, and within
or without the State, on commission, issued after notice by the clerk
Notaries. These officers are appointed and commissioned by the
of the proper court. When to be taken on commission, defendant governor, upon filing a bond and paying the fee required by law.
may elect. in writing, duly served , to cross examine orally; thereupon They have power to administer oaths, take depositions, and the
plaintiff may also elect in writing to examine orally. Exceptions usual power of such officers concerning presentation , demand, protest.
must be filed within three (3) days, after the filing of the deposition.
and notice of protest of negotiable commercial paper.
but objections may neverless be made on the trial for competency ,
Partnerships , Limited and Special. Limited and special partmateriality, and relevancy.
nerships are permitted, but not favored . The statutes on this subject
Descent and Distribution of Property. Subject to rights of must be strictly complied with. A certificate showing prescribed
dower and other charges thereon, and burdens imposed during the
and particulars of the partnership must be signed, acknowllifetime of the decedent, and in the absence of a valid will, the estate details
and filed in the office of the clerk of the district court of the
of one deceased shall descend in equal shares to his children. The edged,
county in which the principal place of business is situated, to be
heirs of any deceased child shall inherit in same manner as though there
recorded and similarly recorded in each county where such
such child had outlived his parents. If the intestate leave no issue partnership
has a place of business. There must be an affidavit
one-half of his estate shall go to the parents, the other to the spouse,
the separate
amount stated
in the certificate has been actually contributed
If no surviving spouse, the whole thereof shall go to his parents that
partner.
by
each
Publication must be made of the certificate
or the survivor of them; and so on through ascending ancestors and affidavit for six weeks
in two newspapers in each senatorial
and their issue, if both parents be dead. Personal property not
strict in which the partnership is to transact business.
necessary to pay debts is distributed to the same persons, and in
Powers
Attorney.
of
A
power
of attorney to convey, or in any
the same proportions as though it were real estate.
Divorce. Divorces are granted in equity in the district court for manner affect real estate, must be acknowledged and recorded. A
revocation
of
such
power
must
be
acknowledged
and recorded in the
the following causes : 1. Adultery committed subsequent to marriage.
same office wherein the original power of attorney is recorded .
2. Desertion, without reasonable cause, for two years. 3. Conviction
Receivers.
In
distributing
property
the
in
hands
of a receiver
of felony after marriage. 4. Addition to habitual drunkenness after
marriage. 5. Inhuman treatment such as to endanger the life of there shall be paid in the following order: 1. Taxes or debts due
wife. The husband may obtain a divorce for like causes. When a the United States; 2. Taxes or debts due the State. 3. Debts owing
divorce is decreed, the court may make such order in relation to to employes for labor, not exceeding $ 100 .
the children and property of the parties, and the maintenance of
Records. All Instruments conveying or creating liens upon the
the wife, as shall be right and proper, and the parties forfeit all rights
or personal property, all conditional sales and articles of adoption
acquired by the marriage. They are not granted on the testimony real
of
a minor child, must, after having been
signed and acknowledged .
of the plaintiff alone and all such actions must be heard in open court.
be recorded in the office of the recorder of deeds in the proper county
Dower. Dower in Iowa is abolished , but the surviving spouse
or counties where the property conveyed is situated, or the minor
child
is.
Unless
so
recorded,
such
instruments
are invalid as to a
Is entitled to one-third in value of all the legal and equitable estates
bona fide purchaser or encumbrancer or as articles of adoption.
In real property possessed by the deceased spouse at any time during
the marriage, which have not been sold on execution or any other
Redemption . Redemption from a sheriff's sale of real estate.
judicial sale, and to which such survivor has made no relinquishment
whether sold under a general or special execution, may be made
of right. A spouse, heir or devisee feloniously taking or procuring the
by
a creditor who has a lien on the property sold, at time after six
taking of the life of the other spouse, or decedent, cannot have dower months
from date of sale by paying to the clerk of the court the
or inherit power or take under the will of the decedent. (See Limiamount provided by statute, being, generally, the amount of the
tations.)
purchaser's bid, with interest at the same rate that the judgment
Executions may be stayed , according to their amount , for ninety bears. Within the time named creditors may redeem from each
days or six months, with a few specified exceptions, and the issuance of other. After nine months, and within one year from the date of sale
execution may be prevented by filing an appeal bond. Otherwise the owner of the real estate sold has the exclusive right to redeem from
execution may issue immediately after rendition of judgment. The such sale, and, in so doing, the debtor must pay off the claims of
judgment is a lien on realty within the county where rendered, or by judgment creditors, who have made redemptions as hereinabove
transcript. It may be made a lien in any other county. Executions stated, in addition to the amount originally bid .
become liens on personal property only from the time of the levy and
Replevin. In actions for the recovery of personal property, the
seizure. Real estate is sold on execution subject to redemption within petition
must be verified ; and if plaintiff desires immediate delivery
one year, except in appealed cases, or where the interest is a leasehold of
the property, he shall execute a bond for double the value of the
of two years or less. Creditors may redeem from the sale after six property
sought to be recovered . The defendant may stay all promonths and before nine months from date of sale . Personal property ceedings and
retain the property by executing a bond to the plaintiff,
is sold without redemption.
with sureties to be approved by the clerk.
Exemptions. The head of a family is entitled to a homestead of
Taxes. Real estate is assessed every odd year: personal property
is assessed every year. All property is assessed at its actual value,
forty acres or less of farm land, or half an acre or less in city or town.
Pension money, its proceeds, wages of a married man, and numerous
and taxed at twenty-five (25) per cent of the assessed value. All

BANKING AND COMMERCIAL LAWS - KANSAS
road taxes and one-half of the other taxes levied are payable without
interest or penalty before April 1st; the balance is payable
before October 1st. Delinquent taxes bear interest at the rate of
1 per cent per month. Taxes upon realty are liens thereon; taxes
upon personalty are lens 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 on 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 may be levied on and sold for taxes by distress
and sale. Real estate is sold for unpaid taxes, after notice by publication, on the first Monday in December of each year, subject to redemption in three years from the date of sale.
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 by the general statutes concerning and relating to foreign
corporations doing business in Iowa. (See Corporations .)
Trust Deeds. They must be executed and foreclosed , and considered as mortgages. That is, the power of sale on notice is abolished,
and they must be foreclosed by equitable action.
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 by statute, which declaration must be recorded by the
recorder of deeds .
Thereafter he or it may issue certificates for
commodities actually in such elevator or warehouse, but the certincates must conform to the statutory provisions . A register of
certificates issued must be kept by the parties isuing them. A
violation of these provisions, issuing double certificates for the same
property, or selling or encumbering property included in any warehouse receipt, is made a criminal offense. There is also a criminal
statute against issuing false warehouse receipts or certificates.
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.

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. (See Deeds .)
Actions. Civil actions are conducted as required by a code of procedure. Security for costs must be given or plaintiffs may deposit
$15 in lieu of bond for costs.
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. 2. Expenses of the
last sickness; wages of servants : demands for medicines and medical
attendance during the last sickness and expense of administration .
3. Debts due the State. 4. Judgments rendered against the
deceased in his lifetime; but if such judgments are liens upon real
estate and the estate be insolvent, such judgments shall be paid
without reference to classification, except the first two which have
precedence. 5. All demands without regard to quality which shall
be legally exhibited against the estate in one year after granting
letters of administration. 6. All demands thus exhibited after the
end of one year and within two years. 7. 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 county in which the land is situated .
Affidavits. Affidavits may be made in or out of the State by the
same authority and with like authentication, as depositions.
Aliens. Law prohibiting allens from inheriting or holding real
estate, repealed 1901. (See Foreign Corporations.)
Arbitrations. Persons having controversies may submit them to
the arbitration of any person or persons mutually agreed upon and
may make such submission a rule of any court of record in the State.
The parties may enter into arbitration bonds conditioned for the
faithful performance of the award.
Arrest. A defendant may be arrested in a civil action upon filing
an affidavit with the clerk of the court that he has removed or begun
to remove his property out of the jurisdiction of the court with
intent to defraud his creditors ; or has begun to convert his property
into cash, for the purpose of placing it beyond the reach of his creditors;
or has property
tracted
the debt.which he fraudulently conceals ; or fraudulently conAssignments and Insolvency. Assignments must be for the
benefit of all creditors and only discharge the debtor to the amount
of payments made.
Attachment. At or after the commencement of an action an
attachment may be had by plaintiff. The affidavit of the plaintiff,
his agent, or attorney must be filed, stating the nature of the claim,
that it is just, the amount affiant believes ought to be recovered,
and the existence of some one or more of the following grounds: 1.
That defendant is a foreign corporation or a non-resident of the State
(but in this case for no other claim than a demand arising upon contract, judgment, or decree, unless the cause of action arose wholly

1403

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 summons 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 disposed of, or is about
to dispose of his property, or a part thereof, with the intent to defraud ,
hinder, or delay his creditors. 9. Or fraudulently contracted or
incurred the debt on which the sult 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 general act. The charter, in addition to the requirements
of the law relating to corporations, shall contain the names and
places of residence of the stockholders 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 counties 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 transact no business, except the
election of officers, the taking and approving of their official bonds,
and the receipts of payments on account of subscriptions to its capital
stock, until it has been authorized by the bank commissioner to
commence business. The capital stock must be paid, in full, in cash
and shall not be less than $ 10,000. No bank shall employ its money
directly or indirectly in trade or commerce by buying and selling
goods, chattels, wares, and merchandise, and shall not invest in the
stock of any bank or corporation, nor make any loans on the security
of the shares of its own capital, nor be the purchaser or holder of
any such shares, except to prevent loss upon a debt previously contracted in good faith. All such property coming into the possession
of the bank in the collection of debts shall not be considered assets
after the expiration of six months. Banks must have on hand in
available funds the following sums : In cities having less than 5,000
population, 20 per cent of their deposits ; in cities having over 5,000
population. 25 per cent, one-half of which may consist of balances
due from good solvent banks located at commercial centers and at
such other points as the bank commissioner may approve. The
other half shall consist of actual cash. Officers are personally liable
for paying overdrafts . Not more than 15 per cent of the capital
stock and surplus can be loaned to any one person, company or corporation. 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 provisions of the law. The bank commissioner, or deputy, must make
examination of each bank at least once a year. Four reports per
annum are required, and the commissioner may call for others .
Banks may purchase, hold, and convey real estate under certain conditions to the extent of 50 per cent of their paid-up capital. Shareholders are additionally liable for a sum equal to the par value of
stock owned and no more.
Deposit Guaranty Fund. Any bank having an unimpaired surplus equal to 10 per cent of its capital, may participate in the guaranty 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 of education or city within the
State, to the amount of $ 500 for each $ 100,000 of its average deposits
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 (less 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 commissioner takes charge and winds up its affairs. He issues to each
depositor 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 exceeding 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
indorser upon bills re-discounted , nor to bills payable, nor to money
borrowed temporarily.
Banks are prohibited from advertising that deposits are guaranteed 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 register 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 corporation) 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 authorized 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 business until it file with the secretary of state an affidavit
made by its president and secretary setting forth that not less than
20 per cent of its capital stock has been paid in actual cash, or property
equivalent thereto . The name adopted must indicate the nature of
the business. The corporate name must begin with the word "the"**
and end with the word " corporation," " company." "association,"
or "society," but this does not apply to banks, benevolent or religlous societies. There must be at least three directors , three of whom

1404

BANKING AND COMMERCIAL LAWS - KANSAS

must be residents of the State. The annual statement shall be made
three months preceding the garnishment or attachment, and three
by each corporation for profit in the month of February of each year,
months' pension money, where such carnings or pension money is
showing a complete detailed statement of the condition of such cornecessary
for the support of the debtor's family.
poration, on the 31st day of December next preceeding. Failure to
Foreign Corporations. A foreign corporation doing business in
file this report within ninety days from time fixed works a forfeiture
this State must file a certified copy of its charter with the secretary
of the charter. The capital stock can be increased to an amount not
of state and pay to the state treasurer the same fees as a domestic
exceeding three times the original amount fixed in the charter and
corporation, when it receives a certificate authorizing it to do busi
to any further amount of bona fide fully paid up capital . Capital
ness and is then subject to substantially the same provisions , judicial
stock may also be decreased. Preferred stock can be issued if all
control , restrictions, and penalties as a domestic corporation . Annual
the holders of common stock consent. Dividends can not be declared
must be filed in February, giving condition on the 31st
from any source other than that which results from profits. The statements
corporation can borrow money not to exceed the amount of its capital of December preceding . If a foreign corporation fails to file with
the secretary of state the statement required by law within ninety
stock.
days after the time provided for, its right to do business in the State
Costs. (See Actions.)
is thereby forfeited.
Courts. Terms and Jurisdiction . District courts, holding two to
Fraud. (See Attachments, Arrest, and Assignments.)
three terms a year in every county, have general original jurisdiction
Garnishment. At or after the time of beginning an action to
In law and equity. Regular terms of the probate court are held in
recover damages founded upon contract, judgment or decree, or after
each county on the first Monday in January, April, July, and Octo- the
issuance of an execution and before it is returned, if the plaintiff
business
may
terms
adjourned
as
be
held
may
special
or
ber, and
to be filed with the clerk an affidavit stating the amount of his
require. Justice's jurisdiction in civil actions for the recovery of cause
money, $300 ; to recover specific personal property, $ 100 . The claim over and above all offsets, that he believes that some person,
naming
him, indebted to, or has property in his possession or under
Appeals
.)
supreme court is the court of last resort. (See
control belonging to the defendant, and that such defendant has
Creditors' Bills. Creditors may bring an action in the nature of his
property
liable to execution sufficient to satisfy his debt, and
no
a creditors' bill to marshal assets or set aside fraudulent conveyances that the indebtedness
or property so held is not by law exempt
as in other states.
from seizure or sale upon execution, the clerk shall issue a garnishment summons.
Days of Grace. Abolished .
Deeds. No particular forms of conveyances are prescribed . As
Guaranty Companies. (See Trust Companies .)
between the parties conveyances are valid without being recorded .
Holidays. January 1st, February 22d . May 30th, July 4th, first
The wife should join with her husband in the conveyance , and any Monday
in September (Labor day) , December 25th, and Thanksgivconveyance or mortgage of the homestead without her uniting in the
Day. If any of these fall on Sunday the Monday following is
same is absolutely void. If the wife has never resided in the State ing
her signature is not necessary. Grantors need not attach any seal a holiday.
or scroll to their signatures, and no witnesses are necessary unless
Husband and Wife . (See Married Women .)
grantors are unable to write. Corporations convey by deed, sealed
. Injunctions may be granted by a district court or
with the corporate seal and signed by president, vice-president, pre- byInjunctions
judge thereof at the beginning of an action or afterwards, in
siding member, or trustee. The acknowledgment must be before a his the
discretion. A bond must be given to protect the defendant
judge or clerk of the district court having a seal, a justice of the against
any loss in case the injunction is wrongfully obtained . In
peace, notary public, county clerk, register of deeds, mayor or clerk
of an incorporated city. Every notary public shall add to his official the absence of the judge from the county the probate judge may
signature the date of the expiration of his commission as notary grant temporary injunctions..
Insolvency. (See Assignments.)
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
Interest. Legal rate. 6 per cent, but 10 per cent may be agreed
officer having the seal thereof, a commissioner of deeds for Kansas,
upon. Excess of 10 per cent is forfeited , and in addition thereto there
justice of the peace or notary public, or before any consul of the
shall
be deducted from the amount due for principal, with lawful
United States resident in any foreign country or port. Deeds and
interest, an amount equal to the interest contracted for in excess of
mortgages must be recorded in the office of the register of deeds of
cent. The legal interest originally contracted for continues
10
per
the county in which the land is situated, or they will be vold as to
until the debt is paid, and no additional interest can be charged by
subsequent grantees in good falth without notice.
penalty for default. A purchaser of a negotiable note for
of
way
Deeds of Trust in the nature of mortgages are not used so far as
value before maturity, without notice, takes the note free of the
usurious taint.
sale by the trustee is concerned . (See Trusts, etc.)
Depositions. Depositions are taken upon notice to the opposite
Judgments. Judgments of courts of record are liens on the real
party. Courts are also authorized to appoint commissioners to take estate of the debtor within the county from the first day of the term
depositions. The depositions may be taken before any person author- at which the judgment was rendered ; but judgments by confession
ized to take acknowledgments . Each witness must sign his own and judgments rendered at the same term during which the action
deposition. The notice must be attached to the depositions and was commenced are liens only from the day on which the judgment
inclosed with them. The depositions should be commenced on the was rendered . Judgments lose their priority over subsequent judgday named, and some portion of a deposition taken on each succes- ments unless execution is issued and levied within one year after
sive day, Sundays and national holidays not being regarded. If judgment. A certified copy of the judgment may be filed in the
taken by interrogatories and cross-interrogatories , under agreement office of the clerk of the district court of any other county and the
or otherwise, each interrogatory and cross-interrogatory must be judgment will then be a lien on real estate in that county, but execuput to each witness and answered so far as he can
it, and the tion can only issue from the court in which the judgment is rendered.
answer written down. If the depositions are taken answer
before the mayor,
Jurisdiction. (See Courts .)
notary public, or commissioner appointed as aforesaid, they must
License. Agents of insurance companies are required to take out
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 licenses from the superintendent of insurance . Cities are authorized
court of the county, or the great seal of the State, that the officer to enact license ordinances and certain classes of business are required
by whom the depositions were taken was, at the time of taking the to take out a license.
same, such officer as he represents himself to be in his certificate.
Liens. Mechanics, material-men, and laborers are entitled to
This should be attached to the magistrate's certificate.
obtain liens upon real estate for labor performed or material furnished
Descent and Distribution . The homestead is the absolute in the erection or repair of any building. Statements as to the
amount of the claim, for what it was rendered and by whom must
property of the widow and children- one-half in value to the widow,
be filed in the office of the clerk of the court. Livery-stable keepers ,
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 forwarding merchants and common carriers have liens. (See Judgments .)
the children attain majority. One-half of all real estate owned by
husband during coverture, and not conveyed by husband and wife.
Limitations of Suits. An action for the recovery of real property,
nor sold at judicial sale, and not necessary to pay debts goes to the
sold on execution or by executors, administrators, or guardians.
wife in fee simple; except of land sold by husband whose wife never
brought by the execution debtor, or the heirs, ward, or guardians,
resided in the State. Remaining estate goes to the surviving
within five years after the deed is recorded . Other actions for
children, and living issue of prior deceased children , children taking
recovery of real property, within fifteen years. On official bonds
per stirpes, in equal shares, or, if none, to the widow. For want of and
contracts in writing, five years. Contracts not in writing, three
wife or child the whole estate goes to the parents . The rules appliyears. Trespass, detinue, replevin, Injuries not arising on contract.
cable to widow of deceased husband apply to husband of deceased
and
relief on the ground of fraud, two years. Action for libel, slander.
wife. Illegitimate children inherit from the mother, and also from
malicious transaction, or false imprisonment upon a suit for penalty
the father, if his recognition has been general and notorious, or in
or forfeiture , one year, Action for any other relief not before
writing . When a child would inherit from either parent, such parent
for, five years . Any case founded on contract, part paywill inherit from the child . Personal property descends in the same provided
ment, or a written acknowledgment or promise, renews the contract.
way as real estate. After March 16, 1909, property descending by law
The statute runs from the date of such renewal.
or will is subject to an inheritance tax. varying in percentage
according to relationship and amount . (See Exemptions .)
Married Women. The real and personal property owned by a
Divorce. Divorces are only granted by district court for the woman at the time of her marriage, and any property which comes
to her by descent, devise, or bequest, or gift of any person except her
following causes : Former marriage; one year's abandonment ;
husband, remains her sole and separate property notwithstanding her
adultery; Impotency ; pregnancy of wife by other than her husband;
extreme cruelty: fraudulent contract: habitual drunkenness ; gross marriage, and is not subject to the disposal of her husband or liable
neglect of duty; conviction of felony. The plaintiff must have resided for his debts. Married women may sell and convey their real and
In the State one year, and sue in the county of residence. Divorces personal property and enter into any contract with regard to the
same in the same manner and to the same extent as a married man
granted in other states in accordance with the laws thereof are recogmay in relation to his property. She may sue and be sued in the
nized as valid In this State.
same manner as if she were single. She may carry on any trade or
Dower. Dower is abolished by law. (See Descent and Distri- business,
perform labor or services for her separate account, and her
bution.)
earnings or proceeds from labor, trade, or business remain her separate
Evidence. (See Testimony.)
property, and may be used and invested by her in her own name.
Executions may be ordered as soon as judgment is obtained.
Mines and Mining. The law provides for the appointment of a
There is no stay of execution in the district court. In justice's mine inspector with authority to require mine owners to provide
courts, by filing bond, stays of execution are granted as follows: certain facilities for the health and safety of persons employed and
On any judgment for $ 20 and under, thirty days; over $ 20 and under compel proper ventilation, regulate excavations, air courses, etc.
$30, sixty days; over $ 50 and not exceeding $ 100, ninety days; over
Mortgages. A mortgage of real estate, to be valid as against
$ 100, one hundred and twenty days . Real estate sold on execution
or order of sale, giving the debtor eighteen months in which to redeem, subsequent bona-fide purchasers, must be duly acknowledged and
recorded in the office of the register of deeds of the county where the
The debtor is entitled to possession of the property during the period land
is situated. Mortgages may be discharged on margin of record
provided for redemption.
by mortgagee or attorney or assignee in presence of register, or by
Exemptions. Homestead of 160 acres of farming land, or of one satisfaction
entered on the instrument when copied on the margin
incorporated town or city, with bulldings thereon .
acre withinin an
the register; or by an independent release duly acknowledged
value. All household goods and wearing apparel; two by
unlimited
and recorded . Wife must join in all mortgages except those for
or
in
lieu
or
mule.
horse
one
purchase money . Mortgages are foreclosed by sult only. By an
cows, ten hogs, one yoke of oxen, and
act of the Legislature which took effect May 18 , 1893, real estate
of one yoke of oxen and one horse or mule, a span of horses or mules,
and twenty sheep and their wool: necessary food for the support of sold under foreclosure of mortgage is subject to eighteen months
drag, and other redemption . If the mortgage foreclosed is for the purchase money
such stock for one year; one wagon, two plows,
farming utensils, not exceeding $ 300 ; grain, meat, vegetables, gro- six months only Is allowed for redemption. This act does not apply
implements of to mortgages executed prior to the date the act took effect. When
ceries, etc., for the family for one year; the tools and
any mechanic. miner, or other person, kept for the purpose or carry- a mortgage is assigned the assignment should be acknowledged and
Ing on his business, and in addition thereto stock-in-trade not exceedrecorded . If the assignment was executed prior to March 15 , 1899 ,
of any It can be recorded whether acknowledged or not. and under the law
ing $400 in value: library. Implements, and office furniture
professional man. Also personal earnings of the debtor carned during must be recorded within four months from that date or payment tothe

BANKING AND COMMERCIAL LAWS - KENTUCKY

1405

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:
State of
SCT.
County
I (here give name and title)
do certify that this instrument of writing from ... and
his wife, was this day produced to me by the parties, and acknowledged and delivered by
...... 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.
19 Given
. under my hand and seal of office this ...... day of ...
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 . Nonresidents 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 public, 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
quarterly court when the value in controversy, exclusive of interest
and costs, exceeds $ 10 ; from the quarterly court to the circuit court
when the value in controversy, exclusive of interest and costs, exceeds
$25 ; from the county court to the circuit court when the value in
controversy, exclusive of interest and costs, exceeds $ 50 ; from the
circuit court to the court of appeals when the value in controversy,
exclusive of interest and costs, amounts to $ 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 arbitrators . Each arbitrator and the umpire, if one
be chosen, shall take an oath to decide the matter in controversy
law, justice and the equity of
fairly and impartially according to
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 recover. 4. That the afflant believes,
either that the defendant is about to depart from this State and with
intent to defraud his creditors has concealed, 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 defendant has money,
or securities for money, or evidences of debt, in the possession of
himself, or of others for his use, and is about to depart from this
State without leaving property therein sufficient to satisfy plaintiff's
claim .
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, committee, 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 of the assignee in making the deed of assignment shall
not invalidate the deed , unless he be solvent, and it appear that the
assignment was made to hinder or delay creditors. The deed vests
in the assignee the title to all the estate, real and personal, belonging
to the assignor at the time of making the assignment, except that
property exempt by law shall not pass unless embraced in the deed .
If the assignor, before making the deed, shall have made a preferential
or fraudulent transfer, conveyance, or gift of any of his property.
SYNOPSIS OF
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.
THE LAWS OF KENTUCKY
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.
RELATING TO
If creditors representing one-half in number and two-thirds of th
amount of debts against the estate shall so request in writing , the
BANKING AND COMMERCIAL USAGES
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
Prepared and Revised by ERNEST MACPHERSON, Esq .,
from State four months ; or has left the State with intent to defraud
Attorney at Law, Louisville.
creditors; or has left his county to avoid service of summons: or
(See Card in Attorneys' List.)
so conceals himself that summons cannot be served : or is about to
Acknowledgments. Deeds executed within the State must be remove, or has removed his property or material part out of the
State not leaving enough to satisfy claim of plaintiff or defendant's
acknowledged before the clerk of a county court or a notary public.
creditors ; or has disposed or is about to dispose of or sell his property.
Deeds other than those of married women may also be acknowledged
before and proven by two witnesses. Deeds executed without the or permitted to be sold or disposed of with fraudulent intent to cheat
hinder
State and within the United States must be acknowledged before tract or delay creditors . Also in action for money due upon conjudgment or award, if defendant have no property in State
the
clerk of
of state,
a court
or his deputy,
notary
of aDeeds
city,
secretary
commissioner
of deeds
, or public,
judge ofmayor
a court.
subject to execution, or enough to satisfy plaintiff and collection
be endangered by delay in obtaining judgment and return of
executed without the United States must be acknowledged before a will
bona. Also in action for personal property ordered to be
foreign minister, consul, or secretary of legation of the United States. nulla
delivered to plaintiff which as part thereof has been disposed of,
or the secretary of foreign affairs, or judge of a superior court of the removed,
or concealed, so that order of delivery can not be executed .
nation
where
the
deed
shall
be
executed,
attested
in
either
case
by
Affidavit as prescribed by civil code and bond required , except no
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 bond required in action upon nulla bona return .

recent owner of the mortgage will be a complete defense to an action
thereon. (For Forms, see Deeds : see Executions .)
(For Mortgages on Chattels, see Chattel Mortgages : see Executlons.)
Notaries. Notaries are appointed by the Governor and serve for
four years. They give bond in the sum of $ 1.000 and are required
to affix the date of the expiration of their commission to all certincates.
Notes and Bills of Exchange. Negotiable Instrument Act took
effect June 8, 1905 .
Partnerships. Limited or special partnerships may be formed
for any legal purpose except banking or insurance. Such partnerships
may consist of one or more persons who are general partners, and
one or more who contribute a specific amount of capital and shall
be called special partners. The special partners are not liable for the
debts of the partnership beyond the amount contributed by them
respectively but the names of the special partners must not be used
in connection with the business . Such a partnership is formed by
executing a certificate stating the name, the nature of the business.
the names of the general and special partners, and their place of
residence, and the amount of capital contributed by each special
partner, and the period when the partnership is to commence and
when it will terminate. The certificate must be acknowledged and
filed and recorded in the office of the county.clerk.
Power of Attorney. (See Deeds .)
Probate Law. (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 filing affidavit and giving bond. Property replevined must
be held by the officer taking it twenty-four hours, during which time
the party from whom the property is taken may give bond to the
plaintiff for not less than double the amount of the value thereof
conditioned for the return of the same or its value in case it shall
be adjudged the plaintiff is entitled thereto, and thereupon may
have the property returned to him.
Service. All service of process is made by the sheriff or by constables, or by some one specially authorized in any particular case,
and must be issued in the name of the state with the seal of the
officer issuing the same affixed .
Suits . (See Actions.)
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 1 , in the year in which the tax is levied .
After land is sold for taxes, it may be redeemed within three years
from date of sale. The interest of a minor may be redeemed at any
time within one year after he attains his majority, and idiots and
insane persons may redeem within five years after the sale.
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 for the purpose of issuing,
registering, transferring or countersigning certificates 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 negotiable 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
.
Trusts and Powers. All trusts concerning lands must be created
in writing except such as arise by implication of law.
Wills. Any person of full age and sound mind and memory, having an interest in real or personal property, may give and devise the
same to any person by last will and testament lawfully executed,
subject, nevertheless, to the rights of creditors. Wills must be in
writing, signed at the end by the testator, or another in his presence
and by his express direction, and subscribed in his presence by two
or more competent witnesses who saw him subscribe or heard him
acknowledge
it. Compliance with these requirements should appear
in the witnessing clause. A will executed, proved, and allowed in
another state, according to the laws of that state, relative to property
in this State, may be admitted to record in the probate court of the
County in
which
such property is situated , by producing an authenticated
copy
. Every
will, when admitted to probate, shall be filed
in the office of the probate court, and recorded .

1406

BANKING AND COMMERCIAL LAWS- KENTUCKY

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 banks and trust companies doing business in
this State have full power and authority to fix the hours of opening
and closing of said banks and trust companies, and may provide
that on Saturday of each week such hour of closing be as early as
twelve (12) o'clock noon.
Chattel Mortgages and Deeds of Trust. No deed of trust or
mortgage, conveying a legal or equitable title to real or personal
estate, shall be valid against a purchaser for a valuable consideration ,
without notice thereof or against creditors, until such deed shall be
acknowledged or proved according to law, and lodged for record. It
is a penal offense, punishable by fine and imprisonment, for any person to sell any personal property, on which there is a mortgage of
record, with the intent to prevent the foreclosure of the mortgage
and a sale of the property.
Contracts . A seal or scroll is in no case necessary to give effect
to a deed or other writing. All unsealed writings stand 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, however, been dispensed with.
Conveyances. (See Acknowledgments.
Corporations formed under the general laws for transaction of
any lawful business. Special regulations prescribed for foreign corporations 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, but 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, depositions 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 cir
cuit court of this district. a judge or clerk of a court, justice of peace.
or notary public. Depositions may be taken out of this State before
a commissioner appointed 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 ofla
person dying intestate shall descend in parcenary to his kindred, male
and female. In the following order, viz: (1) To his children and
their descendants ; if none, then ( 2) to his father and mother equally
if both be living: if either be dead, the whole estate descends to the
one living: if both be dead, then (3) to his brothers and sisters and
their descendants : if none, then (4) one moiety of the estate shall
pass to the paternal and the other to the maternal kindred, in the
following order: (3) to the grandfather and grandmother, or whichever may be living : If both are dead, then (6 ) to uncles and aunts
and their descendants : if none, then (7) to great grandfather and
great grandmother, and so on in other cases without end, passing
to the nearest lineal ancestors and their descendants. (8) If there
Is no kindred to one of the parents, the whole shall go to the kindred
of the other. If there is neither paternal nor maternal kindred, the
whole shall go to the husband or wife of the intestate, or if he or
she be dead, then to his or her kindred as if he or she had survived
the Intestate and died entitled to the estate. When any or all of a
class first entitled to take are dead , leaving descendants such descendants shall take per stirpes, that is to say, by representation, the shares
of their respective deceased parents . Collaterals of the half blood
shall inherit only half so much as those of the whole blood. In making
title by descent. It shall be no bar to a party that any ancestor,
through whom he derives his descent from the intestate, is or has
been an alien. Bastard can inherit in the descending line only from
the mother and her kindred, and can transmit Inheritance 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
rendition. Execution constitutes lien on property of debtor from
time it reaches hands of proper officer. Execution may be replevied
for three months, any time before sale under same, by defendant
giving to the officer an obligation (replevin bond) payable to plaintiff.
with good security for the amount thereof, interest and costs. A
judgment to enforce a lien cannot be replevied . No replevy allowed
upon Judgment against any collecting officer, attorney at law, or
agent, for a delinquency or default in executing or fulfilling duties
of his office or place, or for failing to pay over money collected by
him in such capacity, nor against a principal by his surety, nor upon

a debt due by obligation having the force of a judgment, nor upon
judgment for specific property, or for the property, or its value.
If land sold does not bring two-thirds of appraiser's valuation, defendant and his representatives have right to redeem within a year from
the day of sale, by paying purchaser or his representatives original
purchase money and ten per centum per annum interest.
Exemptions. To persons with a family resident in this commonwealth : Two work beasts, or one work beast and one yoke of
oxen, two plows and gear, one wagon and set of gear, or cart or dray:
two axes, three hoes, one spade, one shovel; two cows and calves;
beds, bedding, and furniture sufficient for family use; one loom.
sufficient for family use ; one loom and spinning wheel and pair of
cards; all the spun yarn and manufactured cloth manufactured by
the family necessary for family use ; carpeting for all family rooms
in use; one table; all books not to exceed $ 50 in value; two saddles
and their appendages, two bridles, six chairs, or so many as shall
not exceed $10 in value : one cradle; all the poultry on hand ; ten
head of sheep, not to exceed $ 25 in value ; all wearing apparel : suffclent provisions, including breadstuff and animal food, to sustain the
family for one year; if not on hand, other personal property, wages,
money or growing crop, not to exceed $40 in value for each member
of the family; provender suitable for live stock, if there be any such
stock, not to exceed $70 in value, and if such provender be not on
hand, such other property as shall not exceed such sum in value;
all washing apparatus not to exceed $ 50 in value; one sewing machine,
and all family portraits and pictures ; one cooking stove and appendages, and other cooking utensils not to exceed in value $ 25 ; tools
of a mechanic, not exceeding $ 100 in value. Libraries of ministers
of the gospel; professional libraries of lawyers; professional libraries
and instruments of physicians and surgeons, not exceeding $ 50 in
value. In addition to personal property there is homestead exemption of so much land, including dwelling house and appurtenances
owned by debtor as shall not exceed in value $ 1,000 . This exemption
does not apply to debts or liabilities which existed prior to the purchase of the land , or the erection of the improvements thereon .
Holidays. The 1st day of January, the 22d day of Februray, the
30th day of May, the 4th day of July, the first Monday in September
(Labor Day) , the 25th day of December of each year, and all days
appointed by the president of the United States, or by the governor
of this State, as days of fasting and thanksgiving are declared holldays, and shall be treated as Sunday. If any of those days named
as holidays shall occur on Sunday, the next day thereafter shall be
observed as a holiday.
Husband and Wife. By an act which took effect June 12 , 1894,
the following important changes were made in the common law of
coverture which theretofore prevailed in Kentucky. Marriage gives
to the husband during the life of the wife no interest in any of
the wife's property. She has full power to contract and to bind
herself and her property, except that she can not bind herself to
answer for the debt, default, misdoing of another, except as to property
set apart for that purpose by mortgage. She may sell and dispose
of personal property as if unmarried, but may not sell or convey
real estate unless her husband unites in the contract, or conveyance,
unless empowered to do so by decree of court in case of insanity.
conviction of felony, or abandonment by the husband. After the
death of either husband or wife the survivor shall have a life estate
in one-third of all the realty of which the decedent was seized in fee
simple during the coverture unless such right shall have been forfelted or relinquished . Such survivor has also one-half the personalty
of the decedent left after the payment of debts. Abandonment and
living in adultery by either party, or divorce works a forfeiture of
these rights.
Interest. The lawful rate of interest is 6 per centum per annum .
and contracts for a greater rate are void as to the excess of interest.
Judgments. A judgment does not constitute a llen on property
in this State. All judgments except for malicious prosecution, libel.
slander, or injury to the person, bear interest from their dates. (See
Executions and Limitations .)
Limitations. The following are the periods within which actions
must be brought, the time commencing to run from the accrual of
the cause of action. Fifteen years : Actions to recover real property:
actions upon judgments and written contracts, except negotiable
instruments . Seven years : Actions by senior patentees against
junior patentees, who have held possession for seven years. Five
years : Actions upon verbal contracts; upon a liability created by
statute; actions for trespass to real or personal property or for damages for withholding same: for the specific recovery of personal property; actions upon negotiable instruments ; actions upon accounts
between merchants, and actions for relief from fraud or mistake.
Two years : Actions upon merchant's accounts for goods sold.
Actions for injury to person or character and for breach of promise
of marriage.
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. Days of grace are abolished.
The signature of any party may be made by an agent duly authorized
in writing. Every negotiable instrument is payable at the time fixed
therein; when the day of maturity falls upon Sunday, or a holiday,
the instrument is payable on the next succeeding business day.
Powers 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
may 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
payable 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; but 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 the probate of wills

BANKING AND COMMERCIAL LAWS - LOUISIANA

1407

the bank. Such banks can not Issue notes and must have a capital
not less than $ 100,000, which must be paid up in cash. (See Act 121
of
Act 45
1902
capital
in cities of
less1910,
than amending
30,000 .) (See
alsoofAct
179asofto1902
, and required
amendment thereof.
THE LAWS OF LOUISIANA
Act 140 of 1906 and amendment thereof Act 152 of 1910.) Act 238
of 1910, amending Act 45 of 1902 , provides for branches.
RELATING TO
Chattel Mortgages not legal in this State. (See Mortgages.)
Collaterals must be delivered to be effectual. Bills of Lading
BANKING AND COMMERCIAL USAGES
negotiable to some extent. (See 42 An. 705.) Act 120 of 1910 makes
it a felony for a customer of bank to wrongfully dispose of collateral
Prepared and Revised by Messrs . RICHARDSON & SOULE ,
security pledged to bank.
Attorneys at Law, New Orleans.
Conveyances. All agreements affecting real property must be
(See Card in Attorneys' List. )
in writing, and transfers and mortgages, etc., must be recorded in
the place where the property is situated to affect the rights of third
Accounts . (See Acknowledgments .)
persons. Deeds are made under private signature or by act passed
Acknowledgments of deeds executed within the State may be before a notary public in the presence of two witnesses. Both vendor
and vendee sign, though signature of vendee is not essential, as any
or his deputy, in
notary public, parish recorder
made before a Judge,
act of acceptance will answer. The notary preserves the originals of
the presence of two witnesses. These witnesses must be over fourteen
deeds passed before him and certified copies given by him are received
years of age. In other States, before a commissioner of Louisiana,
as evidence in the courts. Every notarial deed should contain (1)
or any officer authorized to take depositions in the State where he date
of act and place where it was passed, ( 2) names and surnames
resides, but the official character of such officer must be properly
qualites of contracting parties, ( 3) description of the property,
verified . A Louislana commissioner may certify to the official posi- and
etc., (4) price of transfer and terms and conditions. (5) The marital
tion of any public officer in the State for which he is appointed . A status
of all partles must be given. When a married woman executes
deed to be authentic and to be admissible in a court of justice without other proof of signature, must be acknowledged and signed before a deed she must be authorized by her husband.
a notary or commissioner of deeds . In other states any oath or
Corporations. Any number of persons, exceeding six, may form
acknowledgment made before a notary public, duly appointed in such themselves into corporations for literary, scientific, religious, and
states, when certified under the hand and official seal of such notary,
charitable purposes : for works of public improvement, and generally
of
the
proof
further
without
effect
and
force
same
the
have
shall
all works of public utility and advantage; and any number of persons,
signature, seal and official character of such notary, as if taken or not less than three, may form themselves into a corporation for the
made by or before a Louisiana commissioner residing in such State . purpose of carrying on mechanical, mining, or manufacturing business.
,
mort,
conveyance
deed
every
1896.
countries
In
foreign
Act 140 of
except distilling or manufacturing intoxicating liquors, with a capital
gage. sale, etc.. made or taken before any ambassador, minister.
not less than $5,000 or more than $ 1,000,000 . Any number of perchargé d'affaires , secretary of legation, consul-general, consul, vice- sons, not less than three, may form themselves into a corporation on
consul, or commercial agent, and every acknowledgment, attestation, complying with the general corporation laws, for the purpose of carryor authentication of any of sald instruments, oaths, etc., made by ing on any lawful business or enterprise not otherwise specially proany of said officers under their official seals and signatures shall have vided for, except stock-jobbing. The legislature can not pass a
the full force and effect of an authentic act executed in this State. special act conferring corporate powers. Corporation committing a
No witnesses necessary . Party appearing before any of said officers trespass or damage may be sued at place where it occurred. [Act
need not be a resident of the place where said officer is located.
22 of 1894.] All corporations hereafter organized must have their
Notarial copies of original when deposited in this state in a notary's charters, etc., recorded in the office of the secretary of state. [Act
59 of 1898.] (See act 154 of 1902 for formation of corporations for
office have full force and effect of authentic copies of acts executed
works of public improvement.) Act 120 of 1902 provides for orgain this State. [Act 164 of 1898.]
nization, etc. of local and foreign building and loan or homestead
Actions. Commenced by petition setting forth cause of action,
associations. Three or more persons may form a corporation to
signed by plaintiff or his attorney. Plaintiff must give resident
carry on any business specified in charter that would be lawful for
security for costs or make deposit to cover same if demanded .
individual to carry on. May carry on any named business or
Administration of Estates by executors, administrators, or any
different branches of business , whether related or not. Must have
tutors who are ex-officio administrators - also by dative executorscapital
of not less than $3,000. [Act 78 of 1904.] No corporation
where there is no heir present or agent of heir, public administrator can declare
dividends out of its capital stock, under penalty of fortakes charge. A non-resident executor of a will must in all cases give
of its charter. Meetings of corporations must be held at
bond; a resident does not unless required by creditors. Administra- feiture
domicile (Act 63 of 1910) .
tors and executors of other states must open succession of deceased
Foreign Corporations may be licensed and taxed by a mode differin the courts of this State, and be recognized as such here before they
or forcan sue or be sued or transfer property in this State. Stock in local ent from that provided for home corporations . No domestic
eign corporations shall do any business in this State without having
corporations may be transferred by non-resident, executors, etc..
without the necessity of securing an order from the local court, but one or more known places of business and an authorized agent or
agents in the State upon whom process may be served . All corporano transfer can be made until the inheritance tax is adjusted .
tions (except mercantile corporations) domiciled out of the State and
Affidavits. (See Acknowledgments .)
doing business in the State in default of filing with the secretary of
Aliens. There is no law excluding them from buying or holding
state a declaration of the place of its locality or domicile together with
lands. They are only excluded from voting.
the name of its agent in the State upon whom service of process may
Arbitration . Agreements to submit to arbitration recognized by be made, may be sued upon any cause of action in any parish where
law. Arbitrators must be sworn, otherwise decision is not binding.
the right of action arises.
Foreign corporations must file in office of secretary of state a written
State board of arbitration of labor troubles established . [Act 139
of 1894.]
declaration setting forth and containing the place or locality of Its
the places in the State where it is doing business, and the
domicile,
Arrest for debt may be made on affidavit that the debt is really
name of its agent or other officer in this State upon whom process may
due, and that petitioner verily belleves that debtor is about to remove be
.
1Act 54 of 1904.)
served
from the State permanently, without leaving in it sufficient property
Courts. Terms and Jurisdiction. In parishes other than Orleans :
to satisfy his demand ; and that he does not take his oath with intention of vexing debtor, but only in order to secure his demand. Debtor Justices' courts exclusive jurisdiction up to $50, and concurrent
with the district courts, between $50 and $ 100. 2. District courtsmay be discharged by disproving facts; by giving bond, by making
concurrent with Justices' courts, between $50 and $100 ; exclusive for
surrender,
by delivering
to sheriff
propertyhissufficient
satisfy
demand. Arrest
of the debtor
only secures
presence to
to answer
I all civil matters over $ 100, and in all probate matters and appellate
jurisdiction in all civil matters in justices' courts. In Orleans parish:
the suit; he cannot be held for the payment of the debt.
1 . City courts -exclusive jurisdiction up to $100. 2. Civil district
Assignments and Insolvency. State insolvent laws superseded
courts-exclusive over $ 100 . Justices and city courts open at all
by National Bankruptcy act.
times . In parishes other than Orleans, district courts shall hold conAttachment. Writs of attachment issue on application of credisessions during ten months of the year. In parish of Orleans,
tinuous
tor, under oath, when the debtor resides out of the State; when he
civil district court sits from October 15th to end of June, but shall
conceals himself to avoid being cited ; when he has mortgaged, assigned
on all legal days during the whole year for granting interopen
remain
or disposed of, or is about to mortgage, assign, or dispose of his
locutory orders, issuing writs, trials of rules to quash same, trying
property, rights, or credits, or some part thereof, with intent to
or on appeal therein by a landlord for the
instituted,
proceedings
defraud his creditors or give an unfair preference to some of them;
possession of leased property, partition proceedings, and for such
and when he has converted, or is about to convert, his property into
special probate and insolvency business, as the court en banc may by
money or evidences of debt with intent to place it beyond the reach
rule determine. On all amounts up to $2,000, inclusive, an appeal
of his creditors, or, if debt not due, is about to remove his property
may be taken to the court of appeals, from the city and district courts
out of the State. Creditor must furnish bond equal to the amount respectively,
and on all amounts over $2,000, to the state supreme
claimed to be due, with at least one solvent surety, residing within
court. An appeal lies on both law and facts. Appeals from the city
the jurisdiction of the court, conditioned for payment to any party
shall be tried de novo.
injured by issuance of writ of all damages sustained by him in case courts
Days of Grace. Abolished.
it is decided that the attachment was wrongfully obtained . (Act
No. 7, 1888.) Garnishment may be had as an accessory either to
Depositions. To take testimony of witness residing out of parish
a writ of attachment or fleri facias.
or State it is necessary to file motion duly sworn to showing non-resiBanks. Banking corporations organized under banking laws dence and materiality of evidence. Written interrogatories are preand served on opposite party, or his counsel, who has three days
adopted in 1855 , amended in 1888, in 1892 , and in 1902. Savings, pared
which to cross. Commission then issues, directed to some proper
deposit, and trust companies provided for by Act 150 of year 1888. in
with interrogatories and cross interrogatories annexed, who
amended by Act 95 of 1892, which is now amended by Act 189 of officer,
cause witness to appeal before him to answer under oath the
1902. The number of persons organizing must exceed five. No must
direct and the cross interrogatories . He should reduce answer to
special act of incorporation can be passed . By Act 189 of 1902,
read same to witness and cause witness to sign same. The
the general banking act of 1835 and the amendary acts of 1888 and writing,
officer then prepares a process verbal of the whole, attaches it to the
of 1892 are amended as follows: 1. Period of time must be fixed
in act not to exceed ninety- nine years . 2. Banks can not hold real commission, interrogatories, etc., and should return same to the court
estate for longer time than five years, except such as necessary for issuing the commission within the time fixed therein for taking the
transaction of their business , or except that held as agent or deposition . The deposition of a fugitive from justice is not admissible
the
trustee
. 3. Al managers and directors shall be citizens of Louisiana . in evidence. (Also see Act 176 of 1910.)
4. Safe deposits and trust banks without power to issue bank notes,
Descent. If one dies leaving no descendants, but a father and
may be organized under this law with a capital of $ 50,000 or more, mother and a brother and sister, or descendants of these last, the
is divided into two equal parts, one goes to father and
of which capital at least $ 10,000 shall be paid up before commencing succession
business . In incorporated towns with less than 20,000 inhabitants mother, the other to brothers and sisters or their descendants. If
must have cash capital of not less than $30,000, which must be paid either father or mother of deceased dies before him, the portion which
,
receiv
busine
a
comme
made
be
before
It
may
can
up
er
ss.
nce
would have been inherited by such deceased parent goes to the
trustee, assignee or syndic, and execute trusts of every description. brothers and sisters of the deceased , or their descendants. If deceased
Money or other valuables deposited by married women or minors left neither descendants nor brothers nor sisters, nor descendants from
them, nor father nor mother, but only other ascendants, they inherit
may be drawn out without the authority of their husbands or tutors.
Under Act 45 of 1902, banks organized to do a savings, safe deposit to the exclusion of all collaterals. If ascendants in paternal 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, may be organized for not longer than ninety- nine years, two parts, one goes to ascendants on the paternal and the other to
may not hold real estate for longer period than ten years . except but one ascendant in the two lines, such ascendant takes the entire
such as is held as agent or trustee, or necessary for transaction of ascendants on the maternal side. If there is in the nearest degree
their business ; may accept and execute trusts or agencies of all succession. If one dies leaving no descendants, and his father and
descriptions, may be appointed by any person or by court executor, mother survive, his brothers and sisters , or their descendants, take
administrator, syndic, receiver, curator, tutor, trustee or assignee. half of his estate. If the father or mother only survive, brothers and
Capital stock considered as security for faithful performance of duty. sisters, or their descendants, take three-fourths. If one dies leaving
though court may require other security, and may require the state no descendants nor father nor mother, his brothers and sisters. or
Examiner of banks to investigate the affairs and management of their descendants, take all the estate. The partition of the half, the
SYNOPSIS OF

1408

BANKING AND COMMERCIAL LAWS - LOUISIANA

three-fourths, or the whole of a succession failing to brothers and
sisters as above set forth, is made equal if they are of the same marriage, if of different marriages the succession is equally divided between
the paternal and maternal lines of the deceased. If deceased died
without descendants, leaving neither brothers nor sisters, nor descendants from them, nor mother nor father, nor ascendants in the paternal
or maternal lines, his succession passes to his other collateral relations,
the one nearest in degree excluding the others. When the deceased
has left neither lawful descendants nor lawful ascendants, nor collateral
relations, the law calls to his inheritance either the surviving husband
or wife, or his or her natural children, or the State. If natural mother
left no lawful children or descendants, her natural children, acknowledged by her, inherit to the exclusion of her father and mother and
other ascendants or collaterals of lawful kindred. Natural children
inherit from their natural father, who has acknowledged them, when
he has left no descendants nor ascendants, nor collateral relations,
nor surviving wife, and to the exclusion only of the State. Donations
inter vivos or mortis causa cannot exceed two-thirds of the property
of the disposer if he leave at his decease a legitimate child , one- half
if he leaves two children, and one-third if he leaves three or more.
An inheritance tax is levied upon all inheritances, legacies and donations, provided no direct inheritance or donation to an ascendant or
descendant below $ 10,000 shall be taxed . Tax is 2 per cent on direct
inheritances and donations to ascendants or descendants and 5 per
cent for collateral inheritances and donations to collaterals or strangers.
Bequests to educational, religious or charitable institutions are exempt.
Inheritance tax not due when property inherited, bequeathed or
donated shall have borne its just proportion of taxes prior to time of
such donation bequest, or inheritance. R. C. C. 915 amended to
read "In all cases when either husband or wife shall die leaving no
descendants, nor ascendants and without having disposed by last
will and testament of his or her share in the community property.
such undisposed of share shall be inherited by the survivor in full
ownership.' Act 57 of 1910.
Divorce. (See Married Women .) Can not get absolute divorce
except for adultery, or in cases where the husband or wife may have
been sentenced to an infamous punishment. Divorce may be obtained
after one year by party who obtains a judgment of separation from
bed and board, and after two years by party against whom such
judgment is rendered, provided there has been no reconciliation
between the parties. (See Separation from Bed and Board .) Statistics relative to divorces must be led annually with Secretary of
State Board of Health.
Dower. (See Married Women.)
Execution . Property taken under a writ of fieri facias must be
advertised and appraised, and can not be sold for less than two-thirds
of the appraised value, until it has been re-advertised . Advertisements of movables three times in ten days of real estate once a
week for thirty days. If two-thirds of appraised value is not bid,
and sold on a credit
property must be re-advertised for fifteen days,
for twelve months for whatever it will bring. There is no redemption
of property sold under execution or mortgage. No stay of execution
is given except on appeal, and execution may issue at any time after
expired . Act 113 of 1906
the delay for appealing suspensively haspurchaser
of seized property
authorizes sheriffs and constables to put
in possession.
Exemptions. To head of family, real estate if owned and occupied
as a residence, together with certain furniture, stock, implements,
provisions, etc.; the property not to exceed $2,000, and provided the
person claiming the benefit of the homestead execute a written declaration of homestead (Acts 1880, No. 114) , and no exemption if wife
has separate property worth over $2,000 . No registry required in
parishes other than Orleans. (Operative Jan. 1 , 1899.) Widow or
minor children surviving is entitled to $ 1,000 out of deceased husband's estate, if in necessitous circumstances, by preference over
even a first-mortgage creditor. Sheriff or constable can not seize
linen and clothes of debtor or his wife, nor his bed, nor those of his
family, nor his arms and military accoutrements, nor tools and instru
ments and books, sewing machines necessary for the exercise of his
or her calling, trade, or profession, by which he makes a living, the
right of personal servitude, of use and habitation, of usufruct to the
estate of a minor child, the income of total property, money due for
salary of an officer, wages or recompense for personal service (laborers'
wages) cooking stove, plates, etc., family portraits, musical instruments played on by family. (Acts 1876 , No. 79.)
Fraud vitiates all contracts . Action barred by one year limitation
to annual sale on account of fraud.
Garnishment. Wages earned out of this State and payable out
in all
of this State, shall be exempt from attachment of garnishment
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. [Act 165 of 1904. ) (See
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 real 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. 3. Privilege
of the vendor
of movable effects so long as they are in the possession
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
unpaid , whether it was sold on or without
or so much
of it as is undertakers
aprice
credit,
2. Architects,
, bricklayers, painters, master
bullders, contractors, sub-contractors, journeymen, laborers, cartmen, and other workmen employed in constructing, rebuilding, or
repairing houses, buildings, or making other works. 3. Those who
have supplied the owner or other person employed by the owner,
his agent, or sub-contractor, with materials of any kind for the construction or repair of an edifce or other work, when such materials
have been used in the erection or repair of such houses or other works.
[Art. 3252.) Privilege on crops to be recorded (Act of 1890.) The
vendor of an agricultural product of the United States has a five days'
privilege for unpald purchase price in preference to all others. Privilege granted employes in saw mills, etc. (Act 145 of 1888 , amended
by act 32 of 1910.)
Limitations to Suits. Prescription - Accounts stated and
Acknowledged in writing are prescribed only by ten years. [Act of
1888 ) Personal actions one year: Action for torts of all kinds ; for
Injury to or non-delivery of merchandise shipped on vessels ; for fees
of justice, notary, or constable: for innkeepers' accounts ; for accounts
wages of laborers or sailors ; for freight; and
of retailers of liquors; forThree
years: Action for arrearages of rent
for tuition by month.
charges, or hire of movables or inmovables or money lent; for salaries
of overseers, clerks, or tuition by quarter or year; for fees of physicians,

"

apothecaries, attorneys, sheriffs, clerks, and recorders ; on open
accounts of merchants, whether wholesale or retall, and others . Four
years : Actions by minors against their tutors, counting four years
from majority. Five years : Action on bills of exchange or promissory notes, counting from maturity, and for nullity of contracts or
wills; for recision of partitions ; to set aside public and judicial sales
for informalities. Ten years: All other actions; the right to a usatruct or servitude ; all judgments , whether rendered within or wthout
ahe State, but judgments may be revived before lapse of ten years,
dnd are then good for ten years from date of revival. Prescription
aoes not run against minors or persons under interdiction. Husband
and wife can not prescribe against each other.
Limited Partnership . (See Partnership .)
Married Women. Separate property of wife may be controlled
by her revenues of all separate property administered by the husband.
and all property acquired by either husband or wife after marriage
constitute part of community, unless bought with the separate means
of either and as a separate acquisition. A married woman can not
sue without the concurrence of her husband or the authorization of
the court, and she can not bind herself or her property for his debts.
Wife has no dower in her husband's real estate . The wife can have
no claim upon the property of the husband to the prejudice of third
parties, unless recorded. Where one of the spouses is agent for the
other, he or she may be witness for the other in a matter connected
with that transaction. After dissolution of marriage by death or
divorce the survivor is entitled to one-half of all property remaining
after payment of debts, acquired during marriage, and in case of
death, the usufruct of the other half, unless this half is disposed of
by will of deceased spouse. Wife cannot be a witness to husband's
will.
Mortgages can be foreclosed at any time after maturity of the
debt, by instituting a regular suit and obtaining judgment thereon , or
If the act imports a confession of judgment in favor of the holder, he
can apply to the court for an order directing the sheriff to seize and
sell the property . All mortgages must be recorded before they can
have any effect as against third parties . Trust deeds are not legal.
and chattel mortgages are unknown to the laws of Louisiana. There
is no redemption of property sold under mortgage. All tacit mortgages have been abolished since 1870. In making sales or giving a
mortgage upon his property, it is not necessary for the husband to
obtain the signature of the wife. A mortgage resulting from recording a judgment can not have that effect until after adjournment of
court. [Act 1888.] Lessees obligated to erect buildings, etc., upon
leased property, can mortgage the lease, together with the improvements, etc. (Act 21 of 1908.) Leases and contracts to explore for
oil, gas and minerals may be mortgaged (Act 232 of 1910) .
Negotiable Instruments. "Negotiable Instrument Act" (No.
64
1904)
changes
in many
respects
the
laws formerly
applicable
to
billsofand
notes.
Under
it, days
of grace
, which
formerly were
customary, are abolished. Instruments are payable to bearer if made payable
to the order of a fictitious or non-existing person, when such fact is
known to the one making it so payable; when name of payee does
not purport to be name of any person ; or when the only or last indorsement is in blank. When there is a discrepancy between the words
and the figures of an instrument , the sum denoted by the words is
the sum payable . Two or more persons signing instrument containing words, "I promise to pay, " are jointly and severally liable thereon.
Presentment for payment is unnecessary to bind party primarily
liable, but is necessary to charge drawer or indorser. Notice of dishonor must be given to drawer and indorser when instrument has
been dishonored by non-acceptance or non-payment, otherwise they
are discharged . A bill of exchange does not operate an assignment
of funds in hands of drawee available for payment thereof, and drawee
is not llable till he accepts same. Holder may require acceptance
to be written on bill, and if refused may treat the bill as dishonored .
An acceptance written on paper other than a bill, and an unconditional written promise to accept a bill before it is drawn, binds the
acceptor only in favor of a purchaser for value on faith thereof.
Drawee has twenty-four hours to decide whether he will accept or
not. A drawee who destroys a bill presented to him for acceptance.
or who fails to return the bill within twenty-four hours, is deemed to
have accepted the same. Where a signature is so placed upon a
negotiable instrument that it is not clear in what capacity the person
making same intended to sign, he is deemed an indorser. Foreign
bills must be protested for non-acceptance 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 hollday, 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 holldays, 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.)
Partnership, Limited and Special. Stipulations that one shall
participate in the profits and shall not contribute
to losses is vold,
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 personal property, and the sale thereof either in the same
state or changed by manufacture. 2. For buying or selling any
personal property whatever, as factors or brokers. 3. For carrying
personal property for hire, in ships of other vessels. Ordinary partnerships are all such as are not commercial. There is also a species
which may be incorporated with either of the other
of partnership
called partnership in commendam. It is formed by contract.
kinds,
by which one person or partnership agrees to furnish another persun
or partnership 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 proportion determined by the contract, and of being
Hlable 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 furnished ; the proportion of profts which
partner is to receive and expenses and loses he is to bear; must state
whether
be received
goods
money,
must in
be full
signed
by
parties initpresence
of at11least
one or
witness
andetc.:
recorded
within
six days in mortgage office. If branch houses are established the contract must be recorded in parish where 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 able as a general
partner. Ordinary partners are not bound in solido for debts of

BANKING AND COMMERCIAL LAWS- MAINE

1409

partnership, and no one of them can bind his partners unless they attaches property by or debt due from trustee unless : 1. Due on
3.
have given him power to do so : each is bound for his share of the debt
negotiable paper. 2. Money collected on process
in proportion to the number of partners. Commercial partners are In hands of public officer. 4. Due on contingency.by 5.officer.
Trustee
liable to execution on same. 6. Twenty dollars wages, for personal
each liable for the entire debts of the partnership .
of the debtor, wife or minor child within one month, and $10
Powers of Attorney. May be written or oral. May be either labor
exempt in all cases. 7. In certain cases money due on life and
general for all affairs or special for one affair only. One conceived in accident
general terms confers only power of administration ; to sell mortgage Creditors'policies,
Bills.) and from fraternal beneficiary associations . (See
or do any other act of ownership, the power must be express and
Banks. Savings bank business and discount banking_permitted
special.
only under special charter, and under state supervision. Trust comProbate Law. There is no special probate court. District courts
on obtaining approval
are vested with probate jurisdiction. Successions are opened upon panies may be organized under general statutes
of state bank examiner. General statutes relating to discount bankpetition of interested persons in the parish where the deceased resided.
associations havbanking
Foreign
c.
1903,
by
Laws
166.
repealed
ing
if he had a domicile or fixed place of residence in the state ; in the
a tax of three-fourths of one per cent per annum
ing a branch hereofpay
parish where he left his landed property, if he had neither domicile
business done in this State. Savings banks have
on the amount
nor place of residence in the state; or in the parish in which it appears no
capital, and do business only for the benefit of depositors, under
from the inventory that his principal property was situated, if he statute
regulations restricting Investments, requiring reports under
left property in several parishes; in the parish where he died , if he
oath and examinations by bank examiner. Must not pay over 2 1-2
had no certain domiclle nor any fixed property. The judge appoints
dividend semi-annually. Franchise tax is five-eighths per
cent
per
an administrator when deceased leaves no will. Administrators must
cent, regulated to favor home investments. Use of the words "bank,"
render annual accounts, and are allowe 1 2 1-2 per cent on the invensimilar words in designating a business, for"trust company," and
tory as commissions. Attorneys at law are appointed to represent
bidden, except by corporations organized as above or under laws of
absent heirs. Properties acquired during marriage are presumed to
United States.
be community property, and surviving spouse is owner of one-half.
When either husband or wife dies, leaving no ascendants or descend- | Collaterals. (See Mortgages.)
ants, and without having disposed by will of his or her share in the
Conditional Sales, Consignments. No agreement that personal
community, the survivor holds such share in usufruct during his or property bargained
and delivered to another shall remain the property
her natural life. (See Successions .
of
the seller until paid for, is valid unless in writing and signed by the
Protest. (See Negotiable Instruments .)
person to be bound. Such agreement, in whatever form
it may be,
not valid except as between original parties, unless recorded in the
Separation from Bed and Board . May be claimed reciprocally is
office of the clerk of the town in which the purchaser resides at the
Adultery
for:
1.
.
2.
When
spouse
condemned
to
infamous
punishinenf. 3. Habitual Intemperance, excesses, cruel treatment, or time of the purchase. This does not apply to goods consigned for
outrages, when such renders living together insupportable . 4. Public sale.
defamation of one spouse by the other. 5. Abandonment . 6 .
Conveyances. (See Deeds .)
Attempt of one spouse against life of other. 7. When one spouse
Corporations. Three or more persons may form a corporation to
charged with Infamous offense actually flees from justice.
carry
on any lawful business excepting banking, insurance, constructTaxes. Taxes on real estate can not be enforced until the expira- ing and
operating railroads, savings banks, trust companies, or cor.
tion of the year for which they are levied and after legal notices to
porations intended to derive profits from the loan or use of money ,
delinquents and advertisement. Lands sold for taxes are redeemable and safe deposit companies, but corporations may be formed under
within one year, by the owner, his agent, or heirs, or any creditor,
the general law for the construction and operation of railroads outside
on payment of the purchase money, with 20 per cent interest and the State of Maine. Corporations for other purposes, excepting for
costs, and all subsequent
paid.
taxes
Lands
sold
for
due
taxes
prior
municipal purposes, and where the objects of the corporation can not
to 1880 are not redeemable. State taxes are five mills on the dollar, be
attained without special acts, are also formed under general laws.
Organization becomes void unless corporation begins business within
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 two years . Corporation may capitalize to an unlimited amount and
month, city taxes, 10 per cent a year.
may increase or decrease the amount of their capital or the par value
of the shares. No portion of capital is required to be paid in ; stock
Wills. There are four different kinds of wills, viz.: The olomay be issued for property or for services and in absence of fraud
and
act,
by
private
nuncupa
act,
by
public
nuncupat
graphic,
tive
ive
mystic (or sealed) will. The olographic will must be wholly written, the judgment of the directors as to the value of such property or
and signed by the testator, and may be made within or with- services is conclusive, the stock thereupon becoming fully paid.
dated,
out the State. Nuncupative will by public act as written by a Only original subscribers and takers of stock are liable on same to
extent of unpaid par value and then only for debts contracted during
notary in presence of three witnesses , over the age of 16 years comownership of stock, and action to enforce such liability must be
plete, not insane, deaf, dumb or blind, residing in the place where their
commenced within two years and can be maintained only by a judgwill is executed, or five witnesses not residents of the place, at the
ment creditor of the corporation who shall have begun proceedings
dictation of the testator. Nuncupative will by private act and mystic to
obtain such judgment against the corporation during the ownerwills are subject to many formaliti
es which may be best obtained by
reference to Civil Code Arts, 1581-1387 both inclusive. All persons ship of such stock or within one year after its transfer by such stockof sound mind over sixteen years of age may dispose of their property holder is recorded on the corporation books. Directors must be
by will.
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
SYNOPSIS OF
$ 100,000 of capital. Other fees for organization are: attorneygeneral's fee $ 5, register of deeds $ 5, secretary of state $ 5 . The
annual franchise tax is as follows : $ 5 provided authorized capital
THE LAWS OF MAINE
does not exceed $ 50,000 ; exceeding $ 50,000 and up through $ 200,000 ,
$ 10; exceeding $ 200,000 and up through $ 500,000 , $50 ; exceeding
RELATING TO
$ 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 . Corporations which have suspended business temporarily and have been
BANKING AND COMMERCIAL USAGES
excused from filing returns of amount of capital stock, etc., are not
liable for franchise tax. Meetings of stockholders must be held within
Prepared and Revised by Messrs. VERRILL, HALE & BOOTH,
the State. Clerk must be resident and keep stockholders ' records in
Attorneys at Law, Portland .
State. His records are open to inspection by stockholders but
the
(See Card in Attorneys' List . )
not by mere creditors. With the exception of banking corporations
no
public
reports are required except one to the secretary of state
Acknowledgments. (See Deeds.)
names and residences of officers and amount of capital stock.
Actions. At law begun by writ, under common law practice , but showing
Delivery of certificate of stock to bona fide purchaser or pledgee for
containing declaration . Sults in equity are begun by bill of com- value together with written transfer of same or written power of
plaint, filed with clerk of court and subpoena issued by him, or may attorney to sell, assign, and transfer same, signed by owner of cerbe inserted in writ of attachment and served by copy of bill and writ. tificate, transfers title against all parties. Foreign corporations have
On motion non-resident plaintiffs required to give security for costs. practically same rights as domestic, but are required to file copy of
Administration of Estate . (See Estates of Deceased Persons.)
charter with secretary of state, on whom service of legal processes
Affidavits . Affidavits may be made before a notary public or may be made, and are also required under severe penalties to file
certificate showing among other things the names of officers, amount
Justice of the peace
. In some court matters authority of magistrate of
capital stock authorized, amount Issued and amount paid in; also
must be proved by certificate of clerk of a court of record .
must file certificate showing any change in above particulars. CorAliens. Allens may hold and convey real estate and personal porations may dispose of their franchises on majority vote of the
property. Wills of allens may be proved and allowed In this State. stockholders ; may sue and be sued, and have generally the powers
Widow of a citizen of United States who was an allen when she married of individuals.
him has right of descent in his estate (but see Married Women) .
Courts. Terms and Civil Jurisdiction . Supreme Judicial court:
Arbitration . Judge of probate court may authorize executors or Two or three terms a year in each county; unlimited jurisdiction except
administrators to adjust by arbitration claims for or against the as specified below; full jurisdiction
in equity; appellate jurisdiction
estates represented by them. All controversies which may be the en banc on questions of law, from trial
terms and superior courts.
action may be submitted, by the parties , to referees Superior courts : In Cumberland County except equity, divorce,
of personal
subject
for arbitration
. Majority
Supreme
to
report
make
may
real
actions,
of
referees
extraordinary legal remedies and some others ; exclusive
or Superior Courts .
jurisdiction above $ 50 to $ 500, concurrent jurisdiction above $500 ;
Arrest. (See Executions .) In actions ex delicto , on mesne pro- sits first Tuesday
of every month except June, July, and August.
cess and execution , as of course without affidavit or order; in actions Kennebec County; exclusive jurisdiction, with exceptions to $ 500 ;
concurrent in habeas corpus and divorce ; sits second Tuesday of
ex contractu , on mesne process , upon affidavit of the creditor, his January
agent, or attorney , that he has reason to believe and does belleve Tuesday and first Tuesday of April and September at Augusta ; second
of June and November at Waterville . Courts of probate:
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 neces- Usual jurisdiction of probate matters. Municipal courts and trial
sary for his Immediate support, and that at least $10 is due on the justices: Exclusive jurisdiction of forcible entry and detainer and
claim ; on execution , only after supplementary proceedings and fraud in
other cases
upelsewhere
to limitedtoamount;
superior court where
established,
and
supremeappeals
judicialtocourt.
proven,
if contract
judgmen
existing
March
17, 1887 .
t or action
executio
arrest onbut
n. Debtors
arrested
on mesne
process
or executio
n
Creditors' Bills. Bill in equity may be maintained to reach
may disclose, give up property not exempt from attachment and be property of debtor which cannot be reached by process at law, and
discharg
from arrest, or may give bond and disclose according to its
not exempt from attachment: also property conveyed in fraud of
terms. ed
No arrest in actions ex contractu for less than $ 10, and none is
creditors and property secreted so that it is not repleviable.
of married women in civil actions.
Days
of Grace. (See Negotiable Instruments.
Assignments . Common law assignments for the benefit of
creditors may be made, and after four months will be good against
Deeds.
Any owner of real estate having right of entry may conbankrupt
cy proceedi
vey it by deed. No estate greater than tenancy-at-will can be created
town clerk's
office .ngs. Assignments of wages must be recorded
in
except in writing. Deeds must be acknowledged by a grantor or
Attachment . All property not exempt attachable on mesne pro- one
of them or by attorney in fact, executing the same, before a justice
cess as of course without affidavit; security for costs by indorser of of the peace, notary public having a seal , or woman qualified to take
Writ only if creditor is non-resident ; lien by attachments in the order acknowledgments ; outside the State, and in the United States, before
In which they are made continue for thirty days after judgment a clerk of a court of record having a seal, notary public, or commis(extended where execution is delayed, appeal from taxation of costs sioner of deeds for this State, and in a foreign country before a notary
Is taken, or decision of law court certifed down in vacation) , within public, or a consul or minister of the United States, but if magistrate
which time levy may be made. Personal property may be appraised acting outside of State has no official seal, his authority and the
and sold on mesne process to avoid expense, depreciation or loss, genuineness of his signature must be authenticated by the clerk of
on request of either party and proceeds held by officer in lieu of the a court of record in county where he resides. Unacknowledged deeds
cannot be recorded. No special form of acknowledgment required ,
property; foreign attachment (garnishment) , known as trustee process ,

1410

BANKING AND COMMERCIAL LAWS- MAINE

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, except 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. Depositions 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,
referees 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 Deceased Persons .)
Divorce. Divorce may be decreed by supreme judicial court for
following causes : Adultery. impotence, extreme cruelty, desertion
continued for three consecutive years, gross and confirmed habits of
intoxication 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 persons 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 and suit must be
begun within twenty months after such notice of appointment.
Allowance to widow and minor children, made by court from estate.
Non-resident executor or administrator must appoint attorney.
Time of demand or notice extended for absent creditor if further
assets, but prior payments not disturbed thereby. No administration granted after twenty years. The real and personal estate of a
person deceased intestate (excepting 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 widower free from the payments 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, and to the lawful issue of a
deceased child by right of representation . If no child is living at
the time of his death, to all his lineal descendants ; equally, if all are
the same degree of kindred ; if not, according to the right of 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, according 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, who 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 judgment, 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 and 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
hours after notice redeem personal property of debtor which is subject
to mortgage pledge, or lien; may also redeem real estate subject to
mortgage or other llen, Special provisions for redemption of certain
other special classes of property, such as buildings on leased lands,
franchises, etc.
Exemptions from Attachment and Execution . Homesteads,
not exceeding in value $ 500, when duly registered ; debtor'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; ibrary. $ 150 ; regular pew; cook stove and
fron warming stoves; charcoal, twelve cords of wood , five tons anthracite coal, fifty bushels bituminous coal, $ 10 worth of lumber,
wood, or bark ; produce of farms till harvested ; barrel of flour, thirty
bushels of corn and grain, potatoes for family, one-half acre of flax
and manufactures therefrom for family ; tools of trade, and materials
and stock, $ 50 ; sewing machine, $ 100 ; pair working cattle, or pair
mules, or one or two horses, $300 ; hay to keep them; harness for
cach horse and mules, $ 20 ; horse sled or ox sled , $ 20 ; domestic fowl,
$50; two swine, one cow and one helfer, 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 ; fish-

ing boat of two tons ; debtor may elect if he has more than is exempt.
Life and accident policies are exempt from creditors, except any
excess of $ 150 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 ,
fraudulent representations, etc.; also statutory penalties for fraud ,
cheats, etc. Court of equity has power to afford relief. Statutory
provisions to prevent sale in bulk of part or whole of stock of merchandise in fraud of creditors .
Frauds and Perjuries. No action shall be maintained upon any
contract to charge an executor or administrator upon any
special promise to answer damages out of his own estate; nor to
charge any person upon any special promise to answer for the debt.
default, or misdoings of another; nor to charge any person upon an
agreement made in consideration of marriage nor to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or of any interest therein ; nor to charge any person upon any
agreement that is not to be performed within one year from the
making thereof; nor to charge any person upon any contract to pay
a debt after discharge therefrom under bankrupt laws of the United
States or assignment or insolvent laws of this State; unless the promise.
contract, or agreement or some memorandum thereof is in writing
and signed by the party to be charged , or his agent. No action shall
be maintained on a minor's contract unless ratified by him in writing
be for
years of age, except the contract
after becoming twenty-onewhere
he has received title and obtained
necessaries or real estate
benefit. No contract for sale of goods, etc., of $ 30 or more in value
is valid unless purchaser accepts or receives a portion of the goods
or gives something to bind the bargain, or in part payment thereof,
or some memorandum is made and signed by party charged or his
agent.
Garnishment. (See Attachment.)
Husband and Wife. Each may hold and deal with property
individually, subject to right of descent in real estate. (See Estates
of Deceased Persons.) Husband not liable for debts of wife contracted before marriage, nor afterward in her own name, nor for her
torts. (See Divorce.)
Interest. Six per cent or any other rate agreed upon in writing ;
judgments, same rate; accounts and debts not on time bear interest
from demand. Special rate in time notes does not continue after
maturity, unless so provided ; nor after judgment in any case : no
usury laws. On loans for less than $ 200 , secured by mortgage or
pledge of personal property, the rate shall not exceed 3 per cent per
month for first three months, and 15 per cent per annum thereafter.
Judgments. At law; by general order at end of term on all cases
where verdict or default, unless stayed by proceedings for new trial,
or continued for judgment by plaintiff; in equity, only by decree
signed by justice. No llen except by virtue of attachment on mesne
process (q . v.) and where specially provided by law.
Liens. (Voluminous Statute Provisions, for Mechanics, Material.
Men, Hotel and Boarding-House Keepers, Stable Keepers, Agister,
etc.)
Limitation of Actions. Six years : debt on unsealed contract or
liability (except judgments) ; actions upon judgments out of State of
court not of record ; for arrears of rent; of account, assumpsit, or
case on 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 judgment and all other personal actions. Sult
begun when writ was 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 baried 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 beirs
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
contracts 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 advertising notice, or by possession obtained peaceably, or by consent. or
by sult. 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 mortgage is
given; or, if all parties non-resident, where property is situated : or
possession taken and retained. Mortgage on household furniture
must state amount of loan, interest rate, and cost of procuring loan.
Agreements, whether in form of note, lease, conditional sale, etc., or
otherwise, 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 sixty 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 fallure 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 successive 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 of grace abolished except as to
sight 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

BANKING AND COMMERCIAL LAWS
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 ; Christmas,
and Arbor Day. If note reads "I promise to pay" all 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 sult 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. Land on which taxes are unpaid.
sold on first Monday in Februray 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 cach $ 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 exceptions 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
give validity to contract for sale of merchandise covered, or to protect
one acting on faith of such ownership; but one taking from agent as
security for antecedent debt gets no greater right than agent. Title
to property passed by endorsement, but not in blank. to purchaser
or pledgee in good faith. Property in warehouse may be attached
as that of person named in receipt, or of last endorsee shown by books
of warehouseman . Common law rules prevall generally .
Wills. Wills must be in writing signed by the testator, or at his
request by some person in his presence , and subscribed in his presence
by three witnesses in presence of each other, may be made by any
person of age and of sound mind , and may dispose of all property.
Wills executed in another State or country according to laws thereof.
may be proved and allowed in this State in the county where the
testator had his residence at time of decease ; if proved without this
State (at his domicile) , may be allowed in any county here where he
has property . Widow or widower may within six months waive
provision in will of deceased husband or wife and claim same share
in personal property as would have had in case deceased died intestate.
Nuncupative will must be reduced to writing within six days, or
.
proved by testimony within six months, from time words spoken
No letters in such till fourteen days after decease of testator. Not
effectual to dispose of more than $ 100.00 worth of property unless
proved by three witnesses who acted at testator's request.
SYNOPSIS OF
THE LAWS OF MARYLAND
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by SLINGLUFF & SLINGLUFF, Attorneys at Law,
Baltimore. (See Card in Attorneys' List .)
Acknowledgments of conveyances of any interest in real or leasehold property for above seven years, may be made within the State,
and in the county or city in which the land, or any part of It, lies,
before a notary public, justice of the peace, a judge of the orphans'
court, a judge of the circuit court of any county, or a judge of the
supreme bench of Baltimore city. If within the State, but out of
the county in which the estate conveyed lies, they may be made
before a judge of any circuit court for the circuit where the grantor
may be, or before any judge of the orphans' court for the city or
County in which the grantor may be, notary public, or a justice of
the peace; the official character of the justice must be certified by
the clerk of the circuit court of the county, or superior court of Baltimore city, under his official seal, or any judge of the supreme bench
of Baltimore city, if grantor be in Baltimore city. If without the
State, they may be made before a notary public, a judge of any
court of the United States, or of any state or territory court having
a seal, or a commissioner of deeds for this State . The seal of the
officer
or court
to be affixed to the certificate of acknowledgment
in all cases
. If acknowledged
without the United States, the acknowledgment may be made before any minister, consul general, vice or
consular agent or deputy, or a notary public, or a commissioner to
take acknowledgments for State of Maryland. Every deed conveying
any interest in real estate, must be signed and sealed by the grantor
and attested by at least one witness. A scroll seal is sufficient.
No words of inheritance are necessary to create an estate in fee simple,
and no separate examination of a married woman is required . Defective acknowledgments made valid by Acts 1908 , Ch. 105 and 259.
Actions. The forms of actions , which still savor of the common
law are now very simple , any plain statement of facts constituting
a good cause of action being sufficient. Amendment is allowed at
at any time before verdict. Equitable defenses are now allowed
to be made in a court of law, although there are still law courts and
equity courts having different and distinct jurisdiction . (See Suits.)
Administration of Estates. The orphans ' court of the counties
and the orphans ' court of Baltimore city are the courts of probate .
left a will, letters are granted to executor
In cases where deced
in the will. In granti
and executrix named ent
ng letters of administrawithout leaving will, letters are granted :
died
deced
tion, where
ent

MARYLAND

1411

1. To widow or child or children ; 2. Grandchild ; 3. Father ; 4 .
Brothers and sisters ; 5. Mother: 6. Next of kin ; 7. Largest creditor
applying for letters . In each class, males are preferred to females.
Bond is required with two sureties, or one of certain local surety
companies where authorized by their charter to act as sole surety .
When testator requests in will that executor be excused from giving
bond, court only requires nominal bond for amount sufficient to pay
estimated debts . Six months notice to creditors must be given by
publication before estate is distributed. Personal property must be
appraised , accounted for and distributed through the orphans' court
of the county or city in which decedent resided . All sales must
be authorized and ratified by the orphans' court. By Act of 1896 ,
Ch . 246 , above provisions were inade applicable to "estates
of persons absent and unheard of for above seven years." This act
has been held unconstitutional. See case of Savings Bank of Baltimore vs. Weeks, Court of Appeals of Maryland , June 16 , 1906 , 103
Md . 601. Re-enacted with amendments . (Acts 1908 , Ch . 125.)
Affidavits. (See Acknowledgments .) No particular form necessary but whoever can take an acknowledgment can take an amdavit.
Affidavits always required in a mortgage as to the bona fides of
mortgage, consideration, and the payment of tax on annual interest
in certain counties. (See Mortgages.)
Aliens. Allens, not enemies, may take and hold lands, tenements.
and hereditaments acquired by purchase, or to which they would,
if citizens, be entitled by descent, and may sell, devise, or dispose
of the same or transmit the same to their heirs as fully and effectually
and in the same manner as if by birth they were citizens of this State.
Arbitration. Disputes between parties may be conducted by
peace mutually agreed upon. Special
any judge or justice of the
agreements for arbitration of such disputes to be valid. Parties may
be represented by an attorney, and award of arbitrator or arbitrators
to be a judgment, and court may give judgment and issue execution
on the award. Act 1904. Ch. 671 , provides a means for the settlement
of disputes between employers and employees by mediation or voluntary arbitration.
Arrest. No arrest for debts in this State. In criminal cases a
sentence may be passed, imposing a sum of money as a fine, and
then in lieu of payment by party, of fine imposed, he is liable to
imprisonment.
Assignments. (See Insolvent Law and Deeds of Trust .)
Attachments for debt ( See Act 1890 , Chap. 549) , or for unliquidated damages, either in contract or tort, can be obtained in all
cases when the defendant is a non-resident or has absconded , affidavit
being first made by the plaintiff to the correctness of his claim and
the fact that the defendant is a non-resident or has absconded . They
may be also obtained in connection with an original process when
the creditor or some one in his behalf shall give bond in double the
amount of the debt, with sureties to be approved by the clerk, and
make affidavit before the clerk of the court where the suit is brought
that the defendant is bona fide indebted to the plaintiff in the sum
claimed , and that the plaintiff knows or has good reason to believe
that the debtor has absconded or is about to abscond from the State..
or that the defendant has assigned , disposed of, or concealed , or'
is about to assign, dispose of, or conceal, his property, or some portion
thereof, with intent to defraud his creditors, or that the defendant
fraudulently contracted the debt or incurred the obligation ; or that
the defendant has removed or is about to remove his property, or
some portion thereof, out of this State, with intent to defraud creditors
and the attachment may be maintained , although the debt or obligation upon which the action is brought may not have matured, but
the date of the maturity of the debt or obligation must be set forth
in the affidavit (Act 1894 , Ch . 648 ) . A claimant may have the
attached property released by filing a bond in double the amount
of the appraisement. Any kind of property or credits belonging
to the defendant, in the plaintiff's own hands or in the hands of any
one else , and shares of stock in a corporation, may be attached .
Credits not due may be attached, but wages, hire, or salary not due
can not be attached , and 90 per cent of wages, hire, or salary due
shall always be exempt. (Act 1908 , Ch . 665.) Imprisonment for
debt is abolished. Defendant may be sued wherever he does business.
In addition to attachments against non-residents or absconding debtors
for debt (1. e., a liquidated sum) , as heretofore, attachments may
now be issued against such debtors in cases arising from contracts
when the damages are unliquidated, and in actions for wrongs independent of contract, but in such cases no attachments can be issued
until a declaration is filed setting out specially and in detail the
breach of the contract complained of or the tort actually committed,
verified by the affidavit of the plaintiff or some one in his behalf,
and until a bond shall be filed similar to the bond required in attach
ments for fraud. (Code 1904 , Art . 9.) All papers in attachment
proceedings can now be amended, as in any other actions at law.
(Act 1898 , Ch. 44.)
Banks. The Act of 1898 , Chap. 277 , made important changes in
the banking laws of this State. The law now provides that all banks
incorporated under the laws of Maryland, if located in Baltimore
city, shall have a capital stock of not less than $300,000, and , if
anywhere else in the State, of not less than $ 50,000 . It further
provides: 1: Stockholders must own stock four months before they
can vote it for any purpose ; 2. Directors must be stockholders and
citizens of the State; 3. No one can be director in two banks at
the same time ; 4. Statements must be made annually by the directors
to the stockholders ; 5. Every banking association, authorized by its
charter to do a banking business in this State, shall make to the
treasurer of the state of Maryland no less than five reports during
cach year, to be verified by the oath or affirmation of the president,
cashier, or treasurer of such association or trust company, and attested
with the signatures of at least three of the directors thereof, showing
In detail, and under appropriate heads, the resources and liabilities
of such association at the close of business on any past day specified
by the treasurer of the State; and a summary of such report shall
be
published
in ainnewspaper
in the .cityThe
or treasurer
county where
such
association
this Statepublished
may be located
shall
also have the power to call for special reports whenever he deems
the same necessary; 6. The issue of notes is not to exceed the capital
stock paid in, and no note of less than $5 to be issued, nor of any
amount intermediate between $5 and $ 10 ; 7. The debts are at no
time to exceed the capital stock, and the directors are liable for such
excess; 8. If dividends are declared which impair the capital stock,
the directors are liable; 9. No director can be paid for his services ;
10. A bank can hold land for its immediate accommodation in its
business, and such as may come in payment of debts due, but must
get rid of such land as it requires for debts in three years ; 11. No
loans must be made to the State or the United States to exceed
$50,000 : 12. Banks must not pay out any funds or money other
than the legal currency of the United States, notes issued by the
authority of their charter, and notes issued by other banking incorporations received at their par value by the banks so paying them
out; 13. All State banks, whether incorporated under the provisions
of this act or not, must pay annually to the State twenty cents on
every $ 100 of the issue of notes then in actual circulation , which
suchbank may have lawfully issued, to be applied to the augmentation
of the free school fund of the State. 1886, Chap . 501 , continues
this act in force till January 1, 1905. There are no laws restricting
savings banks as to the class of bonds they may invest in.

1412

BANKING AND COMMERCIAL LAWS - MARYLAND

In addition to the statements to be made to the State treasurer,
an examiner, appointed by the treasurer of the State, shall visit each
and every association doing a banking business in the State (excepting
State banks which may be members of the Baltimore Clearing Association, and as such required regularly to submit to an examination
by a national bank examiner) at least once in each year or oftener,
if in his judgment it may be necessary. The treasurer of the State.
or such examiner, for the purpose of investigation , is authorized to
administer oaths, and examine under oath or affirmation the owners
and directors, and all officers and employes and agents of such bank.
and the examiner making such examination shall reduce the result
thereof to writing : no person shall be appointed examiner to investigate the condition of any bank who shall be an officer, agent, or
employe thereof. Whenever the treasurer of this State shall become
satished that any of the banking associations named have failed to
comply with the provisions of the law, he shall have the right by his
certificate with the approval of the governor, to declare the charter of
such association, company, or corporation forfeited , and said certificate
shall be conclusive evidence of such forfeiture, and thereafter he
shall appoint, with the assent of the governor, a receiver of all the
assets of such association. The provisions of the law as to visits
by the state bank examiner do not apply to savings banks having
no capital stock, building or homestead associations, or national
banks, or to corporations authorized by their charters to transact a
trust, fidelity, surety, or deposit business in this State ; trust, fidelity,
surety, or deposit companies being required by the act of 1896,
Chap. 160, to make certain deposits in bonds with the state treasurer
before they can conduct business in this State.
Collaterals. The conversion by any banker, broker, merchant,
attorney, or agent of collaterals is made a misdemeanor. (See Code,
Art. 27, Sec. 93.)
Contracts . The normal condition of all persons is one in which
they are capable of making any contract. The fourth and seventeenth
sections of the Statute of Frauds are in force in Maryland. Acts 1900 ,
Ch. 362 , make it no longer necessary to show that the consideration
for a promise to answer for the debt of another
is in writing. A
citizen can not make a contract with an allen enemy during the
continuance of hostilities ; but aliens, not enemies, may contract and
hold real property as fully as citizens. The later cases decide contract
of infants to be voidable and not vold ; and they are capable of
ratification by infants on arrival
at age of twenty-one. The contracts
of infants for necessaries are binding upon them. The contract of
a lunatic is voidable and not vold . The statute provides that a
married woman may engage in business, contract , sue, and be sued
upon contracts and torts, as if unmarried . (Acts 1898 , Ch. 457.)
All gambling contracts and contracts made on Sunday are vold.
Conveyances . No estate or title to any property lying withIn this State, for any period above seven years, shall pass or take
effect unless the deed conveying the same shall be executed , acknowledged , and recorded . (See Code 1901 , Art . 21 , Sec. 1.) Every deed
of real estate shall be signed and sealed by the grantor and bargainor,
and attested by at least one witness . No words of inheritance necessary, 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 invalid as to deeds
to bona fide purchasers without notice recorded prior thereto . A body
corporate must embody in the deed itself the appointment of an attorney to acknowledge the deed as and for the corporate act of said
corporation. Vendors ' lien may be released in orignal deed or upon
records where recorded. (Act 1906 , Ch . 65.) Conveyances defectively acknowledged made valid by Acts 1908 , Ch. 105 and 239 .
Corporations are organized under the authority of the General
Incorporation Law, completely revised, Act 1908 , Chap. 240. Liberal
provisions are made for general incorporation; only exception (for
municipal purposes) is in the constitution. All corporations (under
the general law) must pay a bonus tax of one-eighth of 1 per cent
upon its authorized capital stock and any increase. Corporations
have perpetual succession, may carry on business anywhere, may
issue
bonds, Foreign
and secure
them by mortgage
all of
property
including
franchises.
corporations
must fileoflist
resident
shareholders, and amount held. The 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 one-fourth of 1 per cent on the excess to $5,000,000, etc. Domestic corporations may issue all kinds of preferred and common stock,
and exchange same for stock or good will. Valuation in absence
of fraud is conclusive .
Courts. Terms and Jurisdiction. The circuit courts in the
Counties have juricdiction 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 may be made returnable. The circuit
court and circuit court No. 2 of Baltimore city have exclusive equity
jurisdiction in the city. The superior court, the court of common
pleas, and Baltimore city court have concurrent common law jurisdiction in cases involving more than $ 100 . The court of common pleas
has exclusive jurisdiction in Insolvency, and the criminal court in
criminal cases. The orphans ' courts in Baltimore city, and in the
counties have probate jurisdiction . Justices of the peace have
Jurisdiction to the amount of $ 100 . The common law courts have
three terms in the year, and rule days every month in the year to
which process may be returnable. The equity courts have six terms
in the year, beginning the first Mondays of January, March. May,
July, September, and November.
Depositions. When the courts are satisfied , by affidavit or
otherwise, 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, and must qualify before some person authorized to
administer an oath in the state where they reside. The depositions,
duly certified by the commissioners , shall be admitted as evidence
at the trial of the cause, subject to the same objections and exceptions
as the same testimony would be if the witness had been personally
present in court and there examined . Parties have the right to be
present when the testimony is taken under the commission, and
must receive reasonable notice of the time and place. Examination
is
restricted
to the
and interrogatories
and of
cross-interrogatories
annexed
Testimony
to parties
the commission.
non-resident
witnesses can also be taken upon proper notice, as provided by Sec.
17 of 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 matrimonil for the canonical causes
on impediment existing previous to marriage. Divorces a mensa
et thoro are decreed for vicious conduct, cruelty of treatment, abandonment, and desertion. The court has power to decree the custody
of children , and in some cases decrees as to how property shall be
divided, and has power to allow alimony.

Dower. The common-law right of dower exists in Maryland , and
extends to equitable estates. By act 1898, the husband's dower
was created ; an estate of the husband in his wife's estates of inheritance, exactly equivalent to the wife's dower in her husband's estate.
A devise or bequest of real or personal property to the wife or husband
shall be construed to be in lieu of dower in lands or share of personal
estate, respectively, unless otherwise expressed in the will." If the
widow or widower renounces formally in writing, however, such
provision made for her or him will within six months after the grant of
administration on the estate of the deceased husband or wife , the
dower right and the share of personal property remain undisturbed .
(See Married Women .) (Act 1904, Ch . 661. )
Executions may issue and judgments may be renewed or revived
by scire facias at any time within twelve years from date of judgment
or from the expiration of any stay, and may be thereafter_levied
on any property of the defendant. in the circuit courts for the
counties there is a stay until the first Thursday of the term succeeding
the rendition of the judgment, provided the judgment is obtained
at the second term after the defendant is summoned. There is no
stay upon judments rendered in the courts of Baltimore city or by
justices of the peace in the city or counties, but execution may Issue
forthwith. The defendant may stay the execution by superseding
with sureties for six months. Copy of docket entries of judgment
when recorded in another county makes the Judgment alien there.
(Act 1890 , Ch . 314.)
Exemptions. No homestead law. Wearing apparel, books and
tools (not kept for sale) and $ 100 of property in addition, whether
same consists of money, land, goods, or money payable as insurance,
benefit, or relief in the event of sickness, hurt, accident, or death.
are exempt from execution, except on judgments for breach of promise
to marry and seduction, not applicable to any but actual bona
fide residents of this State. Equitable interests in personal property
can not be sold under execution, but may be levied upon, and the
lien thus acquired may be enforced in equity. Choses in action may
be attached.
Foreign Corporations. (See Corporations .)
Foreign Judgments. Judgments of the courts of other states
certified under the act of congress, are proper causes of action against
any person 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 proposed
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. (Sec Dower, Divorce, and Married Women.)
In this State the husband Is not liable for wife's ante-nuptial debts
or contracts . 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 interest in other's real estate by Joint
or separate deed, or by agent or attorney properly constituted
(Acts 1900 , Ch . 195.)
Interest. The legal rate of interest is 6 per cent per annum
Judgments bear interest from their date . A person proved guilty
value of the goods
of usury forfeits the excess over the real sum or
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 subject 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 subject to a lien for materials
furnished or work done in building, repairing, or equipping the same.
To
llensix
and
lay foundation
for enforcing
thefurnished,
material
mansecure
must the
within
months
after the last
work has it,
been
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 Suits . Accounts and notes are barred after
three years, sealed instruments and judgments after twelve years.
A verbal promise or acknowledgment will revive a debt barred by
the statute.
Married 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 conveyances of married women under eighteen years;
they may engage in business, contract, sue, and be sued upon contracts
and for torts, as if unmarried . Married woman is alone lable for
ante-nuptial 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
personalhusband's
estate; husband
has same rights in wife's property as wife
property.
has in
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,
are not valld against creditors unless recorded within six
monthsand
. There must be an amdavit made by the mortgagee or his
agent at any time before recording, that the consideration is true and
bona fide, and that the mortgagee will not require the mortgagor.
or any other
for him,
to pay the
tax levied
uponexcept
the mortgage
Interest,
and person
upon the
assignment
of any
mortgage
for the
purpose of foreciosure, a like affidavit must be made by the assignee.
It made by agent, he must, in addition, make oath that he is the
agent of the mortgagee . A like affidavit is required to chattel mortgages, and absolute bills of sale, both of which must be recorded

BANKING AND COMMERCIAL LAWS- MASSACHUSETTS

1413

within twenty days, The lien of a mortgage may, by ceasing to
SYNOPSIS OF
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
THE LAWS OF MASSACHUSETTS
a tax of 8 per cent on the interest covenanted to be paid in the mortgage, in Worcester, Wicomico, Somerset, Carroll, Howard , MontRELATING TO
gomery, Frederick, and Dorchester counties. No tax in Baltimoer
City and other counties.
COMMERCIAL USAGES
AND
BANKING
Notes and Bills of Exchange. Negotiable instruments are defined by Ch . 119 of the Laws of 1898, which repeals all laws inconPrepared and Revised by H. M. BURTON,
sistent with the provisions of this act. Section 20 provides as follows :
Attorney at Law, Boston.
"An instrument to be negotiable must conforni to the following
(See Card in Attorneys' List .)
requirements: 1. It must be in writing and signed by the maker or
drawer. 2. It must contain an unconditional promise or order to
Acknowledgments and Deeds. Acknowledgments may be made
pay a sum certain in money. 3. Must be payable on demand, or at a
before any justice of the peace, notary public or special commissioner
fixed or determinable future time. 4. Must be payable to order or in
any person withthe State; when the acknowledgement is made by or
drawee,
a
to
is
addressed
instrument
the
where
,
5
and
to bearer;
district of the
this State and within any other state, territory
he must be named or otherwise indicated therein with reasonable out
United States, it may be made before any officer of such state, terriby a provision
certainty." Its negotiability is not affected by a seal, orthe
the proof and
take
to
thereof
laws
the
by
authorized
district
or
tory
instrument
in
which authorizes the sale of collateral securities case
acknowledgment of deeds, and when so taken there shall be attached
be not paid at maturity, or authorizes a confession of judgment if to
a certificate of the secretary of
acknowledgment
of
certificate
the
the instrument be not paid at maturity; or waives the benent of any
state or territory in which such officer resides, under the seal of the
law intended for the advantage or the protection of the obligor; or the
state or territory, or a certificate of the clerk of a court of record of such
gives the holder an election to require something to be done in lieu
territory or district, in the county in which such officer resides,
state,
of payment of money. It is not necessary that paper should be under seal of said court, certifying as to the authority of such officer
made payable at a bank or any fixed place. To charge indorser,
acknowledgments and as to the genuineness of his signature.
take
to
time
The
him.
to
given
be
notice of non-payment must at once
In deeds where there is more than one grantor, the acknowledgment
of maturity is regulated by statute as follows : " SECTION 145. Time
of one of them is sufficient.
of Maturity. Every negotiable instrument is payable at the time
No separate examination or acknowledgment of wife joining in a
fixed therein without grace. When the day of maturity falls upon release
of dower necessary . Conveyances of land are made by deed
Sunday, or a holiday, the instrument is payable on the next succeeding
under seal executed by the grantor or attorney having authority
business day. Instruments falling due on Saturday are to be presented therefor. A conveyance in fee, for life or for a term exceeding seven
for payment on the next succeeding business day, except that instru- years, shall not be valid except as against the grantor and persons
ments payable on demand may, at the option of the holder, be pre- having actual notice of it, unless recorded in the county in which the
sented for payment before 12 o'clock noon, on Saturday, when that real estate is situated . Deeds must be under seal, a scroll being
entire day is not a holiday." Legal holidays are: Christmas, insufficient. No subscribing witness is necessary. Release of dower
New Year's Day, February 22, Good Friday, July 4 , Decoration must be explicitly stated in deed, wife's joining in deed merely,
Day, May 30, 12th day of September, and the 12th day of October,
being insufficient.
all days of general and congressional elections throughout the State
Actions . There are three classes of actions : contract, tort, and
and any day of public thanksgiving or humiliation and prayer pro- replevin.
Actions at law are begun by writs issued in blank form by the
12 clerks of the
claimed by the governor or legislature, and all Saturdays after
several courts. No declaration need be inserted in the
o'clock noon are a legal half holiday. By Act 1898, Ch.198 , it shall writ,
except in cases of arrest on mesne process or of an attachment
be lawful for banks and bankers in the city of Baltimore to close of a vessel.
Suits in equity are begun by filing a bill upon which a
their doors for business at 12 o'clock noon, on each and every Saturday subpoena is issued
clerk of the court. Actions begun by
in the year, and every Saturday in the year, after 12 o'clock noon, trustee process mustbybethe
brought in the county in which the trustee
for
shall be a legal half-holiday, so far as regards the presenting
payment or acceptance, and the protesting and giving notice of the or one of them resides or has his usual place of business.
dishonor, of bills of exchange and other negotiable paper, and for
Administration of Estates. The judge of probate for the county
these purposes shall be considered as the first day of the week, or where deceased last resided may appoint any person of sufficient
Sunday, and all negotiable paper shall be deemed to be presentable capacity as executor or administrator. Executors or administrators
on the secular day next succeeding. Days of grace have been abolished
are required to give a bond of about double the value of the personal
in this State.
estate. An executor will be exempt from giving suretles if testator
Power of Attorney. Every power of attorney authorizing an
so
directs. An administrator will be exempt if all persons interested
agent or attorney to sell and convey any real estate, shall be attested
in this State except creditors consent and all creditors are notified by
and acknowledged in the same manner as a deed, and recorded prior
publication.
In case a non-resident is appointed executor or adminto or with the deed executed in pursuance of such power of attorney.
istrator, he must appoint a resident agent. There are public adminA corporation shall have power to appoint an attorney for the same
istrators in each county to whom administration is granted upon
purpose, by its corporate seal. Such power of attorney shall be
estates of persons who die intestate leaving property, and not having
deemed to be revoked when the instrument containing the revocation
any husband, widow, or heir in this State. Ancillary administration
is recorded in the office in which the deed should properly be recorded .
may be granted upon the estate of a non-resident who dies leaving
property in this State. Every administrator and executor shall tile
Probate Law. (See Administration of Estates and Wills.)
an inventory within three months, and publish notice of his appointProtest is usually made by notary publle. Notary must keep
ment. Notice of a debt and demand for its payment should be given
register of protests. Aprotest of notary public is prima facle evidence to
an executor or administrator within one year after his appointment
of non-acceptance or non-payment, and of the presentment of said
and the debt should be paid after one year and within two years of
note for payment, or of said bill for acceptance or payment , at the the appointment. No suit can be brought by a creditor against an
time and in the manner stated in the protest, and the protest shall executor or administrator within one year after his giving bond,
also be prima facie evidence that such notice has been sent or delivered except on a claim not affected by the insolvency of the estate. No
in the manner therein stated . (See Notes and Bills of Exchange .)
suit can be brought against an executor or administrator who has
Replevin is a remedy to recover specific goods and chattels to published notice of his appointment, after two years from time of
histhe
giving
he has received new assets after the expiration
whose
possession
the
plaintiff
is
entitled
.
Also
the
proper
remedy
twobond,
years.unless
A creditor whose claim does not accrue within the
to recover possession of goods distrained unlawfully. Bond must be of
years may cause assets to be reserved to answer to his claim .
given to the State of Maryland, and any party having an interest two
the estate is insufficient to pay all claims, the executor or
in the property, may, upon breach of any covenant in bond, maintain When
administrator shall represent the estate insolvent, and commissioner
an action in the name of the State for his or her use.
will be appointed to receive proof of claims. Claims for personal
Taxes. The county commissioners of the several counties of the expenses, last sickness, and charges of administration , are not affected
State, and the mayor and city council of Baltimore City are directed by the insolvency of the estate . Executors and administrators shall
to levy a tax annually upon real and personal property situated render an account at least once a year.
within the State, and no person who is not assessed to the sum of
Aliens. Resident or non-resident aliens may sue and be sued and
$100 shall be required to pay any tax. In addition to the above may
hold and convey real estate.
tax the state legislature.with the concurrence of the governor, regulates
Arrest. In an action of contract. the defendant unless she is a
the state tax for the next two years following the meeting of legislature. woman,
may be arrested on mesne process, is the plaintiff, and except
which convenes every two years. The property of religous, charitable,
actions on negotiable instruments, the original party to the
contract
benevolent, and educational institutions, and cemetery compani is in
or his executors or administrators makes affidavit that he expects
exempt from taxation. In Baltimore City the mayor and es
city to
recover
amounting
a
sum
$20
to
;
defendant
that
he
believes
that
council have authority to exempt the plant of manufacturing industries has property which he does not intend to apply to payment of plainfrom taxation, for the purpose of encouragement of industrial enter- tiff's
debt; that he believes that defendant intends to leave the State.
prises. Collectors may sell property to compel payment of overdue Actions
of tort, against women as well as men, except for slander or
taxes, upon giving due notice of sale, and complying with other libel,
be begun by arrest of the defendant, on the plaintiff or
requisites of statute, and any person interested in property may some may
one
his behalf making certain affidavits. A defendant
redeem within one year and a day from date, by tendering to collector arrested onin
process may give bail or he may apply take an
the whole amount received by collector from sale, with interest to oath that hemesne
does not intend to leave the State, or the oathtofor
relief
date
of
tender,
and
in
default
of
redempt
title
property
to
rests
ion,
of
poor
debtors;
on
such oath he is released from arrest. No
in purchaser. Taxes are considered in arrears
on first day of January arrest can be made iftaking
the property of defendant is attached upon the
next succeeding the date of their levy, and bear interest from that same
execution,
writ.
On
except
an
costs, or for alimony, or one
date. Act 1896 , .Ch. 120, repeals and re-enacts the sections of the issued in an action of tort, or wherefordebtor
is about to leave the
code relating to "Revenue and Taxes."
State, he can not be arrested until he has first been cited before a
magistrate for examination. and it appearing that he has property
Wills of land or personal property, and any codic!! thereto , must and
refuses to assign it, the magistrate may order his arrest. When
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 arrested under execution the debtor may apply to take the oath for
witnesses, as and for last will and testament of the testator in the relief of poor debtors.
presence of all the witnesses thereto. Nuncupative wills invalid
Assignments for benefit of creditors. A voluntary assignment to
except in case of disposition of personal property by soldiers and
trustees for benefit of creditors can not be avoided if assented to by
marines in actual service. (Code, Art. 93.) Every will or other
creditors whose claims exceed the amount of property assigned,
testamentary instrument made out of the State shall be held to be except by proceedings in bankruptcy begun within four months or by
valid in Maryland if the same be made according to the forms required
proof of fraud. If there is property in excess of the claims of creditors
by the law of the place where the same was made, or by the law who have assented, the excess in hands of the trustee can be reached
of the place where the testator was domiciled when the same was
by trustee process. Acts done in good faith by the trustee under an
made, or according to the forms required by the law of this State;
assignment are valid, though the assignment be afterward set aside,
and if the testator was orignally domiciled in Maryland , although
if
the assignment is assented to in writing by a majority in number
at the time of making the "will," or at the time of his death, he
and value of the creditors not secured . The trustee shall on acceptance
may be domiciled elsewhere , the said will or testamentary Instrument
of the trust give notice in writing to all known credits of the assignthen so executed shall be admitted to probate In any orphans' court
ment and acceptance thereof and shall deposit with the clerk of the
of this State: and when so admitted shall be governed by and concity or town wherein the debtor has his principal place of business a
strued and interpreted according to the law of Maryland, without
copy of the assignment. The above would probably not apply under
regard to the ex domicili , unless the testator shall expressly declare
the
provisions of the National Bankruptcy Act.
a contrary intention in said will or testamentary instrument. (Acts
Insolvency. There is an insolvent law, but it is superseded by the
1894, Ch. 151.) No will, testament, codicil, or other testamentary
National Bankruptcy Act of 1898.
paper shall be subject to caveat or other objection to its validity
Attachment. All real estate, goods, and chattels not exempt.
after the expiration of three years from Its probate. (Acts 1894,
Ch . 405.) When a person is unheard of for above seven years, and
may be taken in attachment on the original writ and held as security
for judgment, except that lands and tenements can not be attached
supposed to be dead, the orphans' court, under the provisions of
Act of
, Ch. may
125, be.
may grant letters testamentary or of administra- in suits Involving less than $20. Attachments may be made in suits
tlon
as 1908
the case
by or against non-residents as well as in sults by or against residents

1414

BANKING AND COMMERCIAL LAWS- MASSACHUSETTS

No bond is required to make an attachment. Shares of stock in
corporations organized under laws of this State, or of United States,
cannot be attached except by bill in equity. Attachment of shares of
stock is not valid against a bona fide transfer, although not recorded in
book of corporation. Shares in foreign corporation cannot be attached
except by bill in equity. Debtor may dissolve attachment by furnishing bond with sureties to pay judgment obtained or value of property
attached determined by appraisement. Upon affidavit by the creditor
except in actions on negotiable instruments that he has reason to
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 exempt 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 publication . An
attachment is dissolved by death of the defendant if administration
is granted upon his estate upon application made within one year
after his death.
Banks. In this State, safe deposit. loan and trust companies are
116 , revised laws, and
governed by the provisions contained in chapter
amendments thereto . Under the general law fifteen or more persons
andtheir successors may form a corporation for the purposeof 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 bank shall not be less than $ 200,000 nor more
than $ 1,000,000.00, except in cities or towns whose population is not
more than 100,000 , the capital may be not less than $ 100,000.00 .
No business 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,
the comwhich shall be different from any previously organized innumber
of
monwealth ; the location of said bank; the amount and
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
commonwealth. No part of the capital stock can be sold or transferred 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. Sald 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, The cashier is required to give bond in not
sureties, before entering upon his
than $ 20,000, with two or more
less
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 in City of Boston. Trust companies shall
keep a reserve equal to 20 per cent of its liabilities . 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. The bank commissioner shall visit once in every year, and
as much oftener as they may deem expedient, a llsuch banks, and
examine all their affairs, and make such inquiries as may be necessary
to ascertain their condition, and make a report of such investigation
to the general court.
Chattel Mortgages. Chattel mortgages must be recorded in the
records of the city or town where the mortgagor resides when the
mortgage is made, and in the city in which he then transacts business ;
every mortgage must be recorded within fifteen days of the date ;
until recorded the mortgage is not valid except between the parties,
unless possession is delivered to and retained by the mortgagee. On
loans less than $ 1,000 secured by mortgage, the rate of interest can
not exceed 18 per cent. It is a criminal offense to remove, sell, or
conceal mortgaged property.
Corporations. By special act of 1903 , chapter 437 , the law of
business corporations was revised and applies to all corporations
organized in this commonwealth for the purpose of carrying on business within the commonwealth for protit, except the following :
Banks, savings banks, co-operative banks, trust companies, surety
or indemnity companies, safe deposit companies, insurance companies, railroad or street railway companies, telegraph or telephone
companies, gas or electric light, heat or power companies, canal,
aqueduct or water companies, cemetery companies, or any corporations which now have or may hereafter have the right to take or
condemn land , or to exercise franchises in public ways, and corporations to buy and sell real estate, or to sell and distill intoxicating
liquors.
Under this act three or more persons may associate together and
form a corporation for carrying on any lawful business not included
in the above provisions. Such a corporation must have a capital
of not less than $ 1,000 . There is no maximum limit. The shares
must have a par value of not less than $5. The stock may be divided
into two or more classes with such preferences, voting powers, restrictions and qualifications as may be fixed by the agreement of association. Upon due organization of the associates and filing a copy of
the agreement of association with the commissioner or corporations
and on payment of a fee of one-twentieth of 1 per cent of the capital,
but not less than $ 25, a certificate of incorporation is issued by the
secretary of state. The capital stock may be issued for cash property,
tangible or intangible services or expenses. The amount of capital
stock may be increased from time to time. The corporation must
have not less than three directors, president, clerk and treasurer.
The directors, treasurer and clerk are elected by the stockholders .
The president is chosen by and from the board of directors. The
clerk must be a resident of the commonwealth. Meetings of stockholders must be held within the commonwealth, but directors may
meet within or without the commonwealth. Voting by proxy is
permitted, but no proxy dated more than six months before the
meeting named Is valid. Any corporation may hold, purchase, convey mortgage or lease such real or personal property as the purposes
of the business may require.
Every such corporation is required to file an annual report of its
condition, and if its capital stock is over $ 100,000, to file a written
statement under oath by an auditor. It is also required to make
an annual return to the tax commissioner. Every corporation organized under the general law is taxable locally upon all real estate and
machinery owned by it in the commonwealth, and is subject to a
franchise tax aggregate market value of its shares after deducting
therefrom the value of real estate and machinery subject to local
taxation as above, and the value of any property of the corporation
situated in another state or country and subject to taxation there.
Every foreign corporation which has a usual place of business
here, or is engaged here permanently or temporarily in the construction, erection, alteration or repair of a building, bridge, railroad, rail-

way or structure of any kind, shall before doing business here appoint
the commissioner of corporations, its attorney for the service of process, such authority to continue as long as any liability remains outstanding against it in this commonwealth; and shall file with the
commissioner of corporations a copy of its charter and by-laws, and
a certificate setting forth its name, location, names and addresses
of its officers, date of its annual meeting, amount of its capital authorized and issued, the number and par value of its shares, the amount
paid thereon, and details of any payment thereof not made in money .
They are required to file annual statements with the commissioner
of corporations showing their condition. 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 renders
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 per cent of the par value of its authorized capital, but the excise tax shall not exceed $ 2,000 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 of
such actions where such amount exceeds $ 100 and is less than $300.
Police and district courts may in their respective counties exercise
the same powers, shall have the same jurisdiction, civil and criminal,
and shall perform the same duties and be subject to the same liabilities
as trial justices . The supreme judicial court has original jurisdiction
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 of 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
interrogatories, to be exhibited to the adverse party, and crossinterrogatories 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 is allowed if the court so orders .
Divorce. A divorce may be granted for adultery, impotence.
cruelty, desertion for three consecutive years, Intoxication, drunkenness by use of 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 partles
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 be
granted for any lawful cause wherever it occurred . All decrees of
divorce are granted nisl to become absolute in six months unless
otherwise ordered . Either party may marry again but the libelee
not within two years from entry of final decree.
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 onethird of her land for his life, this interest is known as curtesy . If the
deceased leaves no issue, 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 onethird of the remaining real estate and personal property. If deceased
leaves no kindred , a surviving husband or widow shall take the whole
of the remaining 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 of execution except by special order of court. Executions may be served by
levy upon real or personal estate of the debtor or by arrest when
arrest is allowed. Certain personal property and real estate are
exempt from levy.
Exemptions. Homestead, if recorded , to the value of $800 .
Necessary 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, necessary 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 socletles 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 asignee 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 holidays in this State: February
22d, April 19th. May 30th. July 4th, first Monday in September,
October 12th, Thanksgiving Day, Christmas or the day following
when any of the days mentioned 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 dischargeable 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 be issued by a corporation
at more than 7 per cent.
Judgments may be entered within four days of default, but do
not constitute a lien upon realty or personalty of debtor not attached
on the original writ. Are not outlawed for twenty years. Foreign
judgments 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

BANKING AND COMMERCIAL LAWS - MICHIGAN
note, if suit is brought by original payee or his executor or administrator, 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 llabie 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 business on own account must record certificate with city or town
clerk; neglect to do this renders her property so employed liable for
husband's debts, and renders husband liable for
her debts thus contracted . Transfers can not be made direct from husband to wife,
but must be made through a third person. (See Dower and Curtesy,
as to rights of husband in estate of deceased wife .)
Mortgages. Mortgages now in common use contain a provision
authorizing a sale of premises in case of a breach of any of the conditions. Power of sale mortgages may be foreclosed by a sale in
accordance with the provisions of the power contained in the mortgage, and an affidavit that the mortgagee has complied with the provisions of the mortgage shall be recorded in the registry of deeds
within thirty days after the sale. Notice of the sale must be published once a week for three weeks ( sale to be not less than twentyone days after first publication) , the publication to be in the city or
town where property is situated 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 redemption. Mortgages may also be
foreclosed by entry and peaceable possession 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 instruments 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,
must be a promise to pay a sum cersigned by the maker or drawer;
tain 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 negotiable 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
on demand presentis expressed . When an instrument is payable
ment must be made within a reasonable time ; presentment must be
made at a reasonable hour on a business day, at the place specified :
then at the usual place of
when no place is specified or address given
business or residence ; the instrument must be exhibited and when
for payment is dispaid delivered to party paying it. Presentment
pensed 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 days 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 falling
due on Saturday are to be presented for payment on the next succeeding business day, except that those payable on demand may at
option of the holder be presented for payment before 12 o'clock noon
on Saturday, when that entire day is not a holiday.
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 the maker, to pay on demand or
at a fixed time a sum of money to order or to bearer. A check is a
bill of 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
incorporated or not. is about the same
business of banking, whether act
of Massachusetts
The negotiable instrument
as the law now in operation in New York, Connecticut, Colorado,
Florida, Maryland, and Virginia. All persons becoming parties to
promissory notes payable on time by a signature in blank on the back
thereof, shall be entitled to notice of 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 thirty days after date.
Suits. Civil actions in general, except those concerning land (if
be brought in the county
one of the parties lives in the State), mustplace
of business. Where
where one of them lives or has his usual
all parties are non-resident , action may be brought in any county.
out of State
residing
defendants
by
owned
property
of
Attachment
sufficient to give jurisdiction in suit after notice published by order
of court. Such notice to be given within one year from the entry of
the sult. Persons commorant in State may also be arrested on mesne
process and held to bail.
Taxes are assessed as of the first day of April in each year, and on
real estate are a lien for two years after they are committed to the
collector; but the collector may sell real estate for taxes after two
years have elapsed , unless the estate has been alienated prior to the
giving of the notice of such sale. If not paid on demand , collector
may sell after advertisement. Owner, his heirs or assigns, may
redeem within two years by paying or tendering to the collector
when he exercises the power of taking, or to the purchaser of the sum
paid by him, with 10 per cent interest and all necessary intervening
charges, and person having title may redeem in two years after notice
it property is taxed to a person unknown, or to tenant or occupant
not owner, or wrong person or mortgagee of record. The purchaser
under a tax sale, If resident in the city or town where the estate is,
must record his residence or place of business. If he resides elsewhere
he must appoint an agent or attorney and record such appointment.
Inheritance Tax. An inheritance tax is payable on the estates of
all persons dying after September 1 , 1907, as Jollows: All property
passing by will, upon intestacy, grant or gift to take effect after
death to the husband, wife , lineal ancestor, lineal descendant, adopted
child, lineal descendant of adopted child, adoptive parent, wife or
widow of a son or husband of a daughter is subject to a tax of one
per cent if not over $50,000 , 1 1-2 per cent if over $ 50,000, and not
over $100,000, and 2 per cent if over $ 100,000 . All
such property
passing to or benefit of a 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 5 per cent if over $100,000 . Property passing to
or for benent of any other person not exempt, a tax of 5 per cent.
Property going to use of a charitable, educational or religious society
or institution or for use of a city or town is exempt; no bequest or
share passing to a hsuband, wife, father, mother, child, adopted
child or adoptive parent is taxable unless its value exceeds $10,000 .
No other bequest, devise or distributive share is taxable unless it

1415

exceeds $ 1,000 . Shares of stock of non-resident decedents in Massachusetts corporations and national banks are subject to a tax on the
transfer thereof.
Transfer of Corporation Stock. The delivery of a stock certificate 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
attorney to sell, assign or transfer the same, signed by owner of certificate, shall be 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
defendant in hand of a third person may be attached and held to
satisfy final judgment.
Wills. Any person of full age may make a will disposing of his
estate . The will must be signed by the testator and attested by
three witnesses in presence of the testator. A married woman may
make a will, but such will shall not deprive her husband of his tenancy
by the curtesy in her real estate, or of a life estate in one-half thereof
if they have had no issue born alive.
SYNOPSIS OF
THE LAWS OF MICHIGAN
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by JULIAN G. DICKINSON, Attorney 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
to me known
this day before me personally appeared .
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
witnesses. 2. - In any other state, territory, or district of the United
States : Same officials as described above or any officer authorized
by the laws of such state, territory, or district, or before a commissioner 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 plaintiffs 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
allowance or disallowance of any claim. All claims barred, not presented before administration is closed : Administration of intestate estates is granted: 1st. to surviving 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
other states, territories, or foreign countries cannot sue as such in
this State without procuring administration in this State.
Affidavits may be taken by any judge, master in chancery, clerk
of court, Justice of the peace, police magistrate, notary public, or
circuit court commissioner. Any oath authorized or required to be
made, without the State for use in judicial proceedings here, must be
authenticated by judge of a court having a seal, and the genuineness
of such judge's signature, existence of the court, and that such judge
is a member thereof, certified by the clerk of the court under the seal
thereof. If in any other state or territory, may be taken before a
commissioner appointed by the governor of this State, or any notary
public or justice of the peace authorized by the laws of any such state
or territory to administer oaths therein.
In actions at law affidavits of amount due on open and stated
accounts, attached to and served with process as commencement of
sult make a prima facie case, unless denied by the defendant's affidavit
filed and served with plea.
Aliens. May inherit or purchase and hold and convey personal
and real estate.
Arbitration . Competent parties to any controversy which is or
might be the subject of an action at law or suit in equity, may agree
to arbitrate, and judgment of any circuit court rendered upon the
award. No arbitration of claim of any person to any estate in fee
or for life in real estate.
Arrest. By writ of capias in personal actions in tort and in actions
for money collected by any public officer; or upon promise to marry :
also by warrant allowed by any justice of the peace or judge of a
court of record, under the fraudulent debtor's act, when the creditor
has commenced suit or obtained judgment and the debtor has disposed
of or concealed, or is about to dispose of or conceal property liable to
execution , or the debt was fraudulently contracted.
Assignments for the benefit of creditors are vold unless made
without preferences ; must comprise all of assignor's property not
exempt from execution. The circuit court in chancery has supervisory 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 in such 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.

1416

BANKING AND COMMERCIAL LAWS- MICHIGAN

Capital required is graded- $ 15,000 to $ 100.000, according to population 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. No 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 30 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 payments on such certificates ; not liable to depositors for payment of a forged or raised check unless notified within three months
after return of voucher.
Taxation. All shares at their cash value assessed against stockholders, and bona fide indebtedness of each stockholder may be set
off against such assessment ; taxes not paid by stockholders, bank's
duty to pay .
Trust deposit and security companies may be incorporated under
the general laws of the State applicable thereto. Seven or more
persons may assoclate to establish- capital graded from $ 100,000
to $5,000,000 according to population of cities where conducted ;
deposit with the state treasurer 50 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 sale must 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 purchaser cannot make valid sales against the legal owner without the
authority of consignor or legal owner. (See Liens.) (See Frauds .)
Conveyances. Any person of full age or otherwise capable may
convey by deed any interest in lands, whether in actual possession
or not. All grants and devises of lands to two or more persons create
estates in common ; no joint tenancy, unless expressly so declared,
except such as are made in trust or to executors, and except such as
are made to husband and wife, who take as "tenants by entirety."
The words " conveys and warrants" in the deed describing the premises
and specifying the consideration , dated , duly signed and acknowledged
by grantor are sufficient to convey title in fee simple and to warrant,
that grantor and his heirs and personal representatives is seized of
the premises, has good right to convey same, guarantees quiet possession thereof, and that he will warrant and defend the title against
all lawful claims. The words " conveys and quit claims " duly signed,
sealed and acknowledged by grantor are sufficient to convey grantor's
interest. The words " mortgages and warrants" and duly described
premises, specifying to secure the payment" and reciting the sum
for which mortgage is given and the notes and other evidences of
debt secured thereby, mortgage being dated , signed, sealed and
acknowledged by grantor, is sufficient and warrants perfect title in
the grantor and against all previous incumbrances; omitting the
word "warrants" sufficient, but without any warranty. Dower and
homestead rights not waived unless wife joins in the mortgage. No
homestead right will avail against the mortgagee if there is no wife,
nor if wife Joins in the mortgage. Married women of full age joining
with husbands in any deed, mortgage, power of attorney or other
writing, shall be bound in respect to their own title.
Corporations. Banks, mining, manufacturing, insurance-fire,
marine, accident, burglary- printing and publishing, manufacturing
and mercantile, or a union of the two, partnership associations, real
estate associations, real estate, railroads, street railways, co-operative
benefit associations, co-operative savings associations, and religious
societies, are respectively organized under State general laws ; required
to file with the secretary of state, articles of association .
Business Corporations. Three or more persons may organize. One
half of capital must be actually subscribed and at least 10 per cent
either in money or property must be paid in; if in property same
must be for the purpose of the business, and described and its value
specified in the articles. Stockholders vote in person or by proxy,
Each share has as many votes for directors as directory numbers,
and the aggregate vote may be distributed for one or more of directors. May issue preferred and common stock of the par value of
$10 or $100. Preferred entitled to dividend not to exceed 8 per cent
quarterly, semi-annually or annually and if not paid be accumulated ,
and paid, before any dividend paid on the common. Articles of
association to be recorded in the county clerk's office of county where
operations carried on, and office of the secretary of state. May hold
real estate for the purpose 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
Hlable 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, unlawful 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
peace probate courts and other inferior tribunals. Justice courts in
each county have jurisdiction of cases at law involving from $ 100 to
$500. In Grand Rapids is a "Superior Court" for civil cases, limited
to parties resident of the city. Probate courts in each county have
jurisdiction of estates of deceased persons and testamentary trusts .
Supreme court has final appellate jurisdiction from circuit, municipal and recorders' courts.
Days 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 notary 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 sult 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 ancestor; 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. Illegitimates heir to mother; dying intestate
estate descends to mother or her relatives if she be dead ; become
legitimate by parents, intermarriage or father's written acknowledgment. The foregoing provisions 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 exceeding $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 husband . 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 preceding 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
administration ; residing in this State and eighteen years of age and
in husband's conveyances and mortupwards may bar by joining
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 highest
bidder, except homestead , to determine excess of value above $ 1,500
redemption claim. Defendant or his heirs or assigns may redeem
within twelve months, his judgment creditors and others having valid
liens within fifteen months from date of sale. Execution against the
body may be issued on all judgments in actions of tort. Personal
property levied on, after setting off exemptions, may be sold on six
days' notice at public sale, to highest bidder to a sufficient amount to
satisfy the debt and costs; no redemption after such sales. Executions from justice courts do not run against real estate.
Exemptions. Homestead -selected by the owner and occupied
by him; not exceeding forty acres of land and dwelling thereon ; or one
plat or city or
lot with dwelling thereon within any recorded town be
allenated or
village not exceeding in value $ 1,500. Same cannot
or any
execution
any
on
or
sold
of
wife
consent
Incumbered without
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 process. Exemption of homestead continues during Its occupation 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
selling 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 agentsreceipt; 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
mortgage by mortgagors or of property held by contract of purchase
without 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
pald 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 lable on
any special promise to answer damages out of his own estates.

BANKING AND COMMERCIAL LAWS- MINNESOTA

1417

Fraud, Civil. Sales, transfers and assignments of stocks of goods,
Negotiable Instruments. A promissory note is an unconditional
promise in writing to pay a sum certain in money, on demand, or at
wares merchandise and nxtures in bulk pertaining to conduct of any
business, otherwise than in ordinary course of trade of seller, etc..
aorfixed
and determinate future time, to the order of a specified person
to bearer.
vold as against creditors, unless the seller, etc. , five days before sale,
make inventory of the goods and cost price to seller of each article ! A bili of exchange is an unconditional order of one person to another
and unless the purchaser demands from seller list of names and requiring the drawee to pay to a certain person, or order, or bearer on
addresses of creditors and his indebtedness, and within five days demand or at a fixed or determinate future time a certain sum of
taking possession and payment notines every creditor of such money . May be payable in installments and contain provisions that
before
sale.
on default the whole sum of money shall become due with exchange.
fixed or current rate, interest and attorney fees for collection. May
Garnishment. Process may issue in any action brought in any authorize
collaterals and confession of judgments. If it reads
justice court or eircuit court on contract expressed or implied, judg- "I promisesaletoofpay."
all makers are jointly and severally liable.
ment or decree, to hold whatever property any person may own or Must not be payable" upon
Cannot waive exemption
have belonging to the debtor. Bills of exchange and promissory from execution. Need not contingency.
"for value received" nor place
notes due in the garnishee's hands at the time of serving summons where drawn or payable. If specify
issued , accepted, or indorsed when over
are garnishable. Property, real or personal, things in action, equitable
due is payable on demand. May be payable to two or more payees
interests, held by fraudulent transfer from the debtor and any prop- Jointly
or one or more of several payees. Want or failure of conerty liable to execution or to the payment of the debts of the debtor sideration,
a defense against one not a holder in due course, partial
in the garnishee's hands may be recovered ; wages of any householder failure
a defense pro-tanto. One not a party, or the payee of the
not more than $30 and less than $8 for h's personal labor, and of any paper placing
signature in blank on the paper before delivery becomes
other person for labor not more than $ 15 and not less than $4; and an endorser. aIndorser
engages on due presentment the paper shall
benefits payable by fraternal beneficiary societies, shares in building be honored and that he will
pay to holder or any subsequent indorser,
and loan association of any debtor, except as to one having a home- who may be compelled to pay;
where maturity falls on Sunday or on
stead exemption, are exempt from garnishment.
a
holiday,
payment
due
on
the
next business day; but where all of such
Husband and Wife. If sued together she may defend and if
not a holiday may if payable on demand be presented before noon.
either neglect to defend the other may be ordered to defend for both. day
Fraud in procuring signatures and delivery defense against any holder.
If he deserts her she may be authorized by the probate court to prosePresentment not necessary to charge anyone primarily liable. If
cute or defend in his name. If either wrongfully retains the other's not
payable on demand present on the day due ; If on demand present
property, acquired before or after marriage, the owner may sue for within
reasonable time after issue; bill of exchange payable on
unmarried
Neither
same as if
.
liable for the debts of the other before demandapresent
reasonable time after last negotiation.
or after marriage, nor earnings or property of either nor the income
Fraudulent or material alterations do not affect the original instruthereof; nor shall either be liable to make compensation for labor ments
in
the
hands of innocent holder in due course.
or services rendered for the other. Either may constitute the other
Unconditional promise in writing to accept a bill of exchange,
an attorney in fact to dispose of property. Expenses of family and given
before or after drawn, valid in favor of all who take it upon
children's education are not chargeable upon the property of the wife faith thereof for value; holder may decline qualified acceptance; if
but are chargeable against the husband and he may be sued therefor. he takes qualified acceptance, drawers and indorsers are discharged .
Protest of foreign bills of exchange may be made by a notary public
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 or any respectable resident of the place of payment in the presence of
for usury. When any installment of interest upon any note, bond,
two or more creditable witnesses ; drawee is not liable unless he accepts.
mortgage or other written contract shall become due and remains
Check or a bill of exchange on a bank payable on demand, must be
unpaid , interest is allowed on such installment from the time it became
presented reasonable time after issue, and if dishonored notice must
due at same rate specified in the obligation or at the legal rate. Legal ' be given or drawer is discharged to extent
of loss caused;does not
rate collectable on all moneys due on any written obligations and on
operate to assign any part of drawer's funds ; bank is not liable unless
all moneys due on all contracts express or implied, whether verbal it accepts or certifies. If holder has check certified drawers and
or written; and on settlement of accounts from day of ascertaining
indorsers are discharged .
The present negotiable instruments law of Michigan took effect
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
Sept, 16, 1905, and repeals all acts or parts of acts inconsistent with
time of interest and discount on negotiable paper, a month means
Its provisions ; but does not apply to instruments made prior thereto;
a calendar month and a year a calendar year of twelve months .
materially changes the law in this State and should receive special
in every doubtful case.
Judgments of courts of record are not liens on real estate or examination
Power of Attorney. Almost every act that any person, firm or
personal property until by levy thereon of execution issued from the corporation
may
perform, may be performed by an attorney in fact.
courts upon such judgments. Liens under execution levied upon
Conveyances, mortgages, or leases for more than three years ' term
real estate exist five years from and after the levy. Judgments expire by
attorney in fact, the power of attorney must be in writing signed .
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 sealed and acknowledged same as a deed of lands, to be admitted for
at law thereon before expiration . Judgments of the justice of the record or to proof thereof.
Probate Law. (See Administration of Estates.)
peace may be entered in the circuit courts on transcript duly taken
Protest. (See Negotiable Instruments .)
to the circuit court and thereupon become judgments of such circult
courts.
Goods or chattels wrongfully taken or detained may
Liens. Any person, who pursuant to a contract with any owner, beReplevin.
replevined by owner or part owner or party entitled to possession.
part owner or leasee of any land, furnishes labor or materials in the Affidavit
of
plaintiff
agent necessary for issue of writ. If from
construction of a building, etc., on such land, shall have a lien on such circuit courts plaintifforrequired
give bond with sufficient sureties
structure and land to the extent of one quarter section or if in a city to the officer within twenty-fourtohours
after seizure and appraisal of
And
or village, the lot or lots upon which such structure is situated .
the
property
which
must
not
be
delivered
to plaintiff within fortyany sub-contractor, who furnishes materials or labor in carrying fore- eight hours; and in the meantime if the defendant
shall give sufficient
ward or completing such contract shall have a lien upon such building bond to the officer he shall return the property to
same person
and land to the extent of the interest of such owner, etc. Any person, from whom he took it; in that case if plaintiff recoversthe
he may recover
artisen, or tradesman for labor and skill applied upon any property on the defendant's bond; if he fails defendant may recover
on plaindelivered
that purpose shall have a prior lien for amount due for tiff's bond according as the judgment may warrant. In justice courts
such laborfor
. Hotels, boarding
houses and lodging houses have a lien bond with sufficient sureties must be given and tiled in double value
upon baggage and other valuables of guests, boarders or lodgers for of the property before writ issues .
accommodations . Any person keeping
and caring for domestic aniTaxes. State and county payable every year after December 1st.
mals Intrusted to them for that purpose have a llen for proper charges.
delivered to county treasurer March 1st, thereafter, and if delinquent
Limitation of Suits. Judgments of courts of record and sealed
bear interest 1 per cent per month. Returned to auditor general of
instruments ten years, justice court judgments six years ; accounts
State, if not paid, and by him enforced by foreclosure in chancery in
and notes and other simple contracts and for taking, detaining or every
county, and the taxable property sold under decree of the
injuring goods and chattels, six years from the date the action accrued ;
court by county treasurer, each parcel for the amount of taxes and
revivor: part payment, or promise in writing to pay. Absences from
charges
against same ; redeemable one year thereafter and does not
the State deducted from the period of limitation. Mortgages fifteen
absolute until proceedings taken by purchaser for writ of
years after due or after last payment thereon. For trespasses on become
assistance, which must be instituted within five years by service of
lands, assault and battery, false imprisonment, slanderous words or
written
notice
owners
six months
before
such
regular
taxable,
writ. If decreeupon
and property
andapplication
due noticefor
is given
libels
and mal-practice against physicians, surgeons, and dentists.
two years
. For misconduct of sheriff or their deputies, three years,
and served , purchaser is entitled , upon due proof thereof to writ of
and for personal injuries three years. For the recovery of real propassistance and possession unless redeemed pending the notice by
erty, five years where the claim arises against executors, guardian's
payment of double the amount paid by purchaser and $5.00 for each
parcel redeemed. City taxes are governed by charter or by the
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
general act under which cities and villages are organized.
taxes ; and by minors and others under legal disabilities three years 1
Wills. Codicils. Every person of full age ( twenty-oneyears) and of
after removal of such disabilities , in all other cases fifteen years.
be in writing, signed by testator or by
sound mind may make; must
Limited Partnerships . May consist of one or more general and
person in his or her presence duly authorized by him or her and
some
one or more special partners. Speciais contribute specific amount
attested and subscribed in his or her presence by two or more witnesses
of capital in cash or property at cash value, and if actually paid in
competent as such at the time . If one of the subscribing witnesses
not liable for firm's debts in excess of such special capital. General
and testaall particulars
of time
the will
execution
to the mind
testify
shallwas
partners transact the business of the firm .
may
made, the court
willinwas
at the
of sound
Married Women. May make contracts in respect to their own tor
will, in case no person appears to contest it; if none of
the
admit
property and may hold and enjoy, and have the same rights and the witnesses reside in the State at the time of proving the will, the
remedies regarding their property as if unmarried . They may carry
may admit the testimony of other witnesses to prove testator's
on business in their own names with their own property by consent court
sanity and execution and proof of the signature of testator and subof their husbands; cannot enter into partnership with
or scribing witnesses . Probate of will conclusive of its due execution
any other person and become liable for the firm contractshusband
. Married
cannot be assalled collaterally. Foreign wills, duly admitted to
women's contracts to pay or to become liable for debts of husbands or and
without the State, may be admitted and recorded in any
other person voidable, may however charge their real estate or per- probate
of the State in which testator left real or personal estate by
county
sonal
property to secure such indebtedness by deed, mortgage or duly filing,
contract.
an exemplified copy of said will and of the record admitting
same to probate. A nuncupative will in which the value of the estate
by two witnesses, may
bequeathed does not exceed $ 300, duly proved
Mortgages on real estate, executed and acknowledged the same
be allowed. Wills may be revoked by burning, tearing, cancelling,
as deeds; may be foreclosed under power of sale by advertisement
or obliterating with intention of revoking same by testator, orby some
or in circuit court in chancery of the county wherein the property
other writing signed, attested, and subscribed in the manner provided
is situated. Trust deeds not in customary use but may be made and
for execution of wills but shall prevent revocation implied by law.
executed and will be treated as mortgages.
Chattel mortgages and bills of sale: intended as security by mortgagor, signed and delivered to the mortgagee, sufficient between the
SYNOPSIS OF
parties, but vold as to creditors, subsequent purchasers and encumbrancers in good faith and without notice, unless such mortgages and
township
office
clerk's
or
in
the
city
are
nled
copies
bills of sale or true
THE LAWS OF MINNESOTA
where mortgagor resides, or if non-resident of State, in city or township where the property is situated ; and unless affidavit of mortgagor
RELATING TO
or of some one for him having knowledge of the facts is annexed to
mortgage or bill of sale, showing consideration is actual and
the
adequate and in good faith . Without such affidavit officers forbade
BANKING AND COMMERCIAL USAGES
to receive and file such mortgages: cease to be valid against creditors.
subsequent purchasers, and encumbrancers in good faith, on expiraand Revised by EDWARD P. SANBORN, Attorney at Law,
Prepared
next
days
thirty
within
renewed
tion of year from filing date, unless
St. Paul. (See Card in Attorneys' List.)
mortgagee
his
interest.
showing
of
preceding expiration
by
affidavit
etc., filed and annexed to the mortgage in said clerk's office ; likewise
Acknowledgments may be certified by the following officers :
each succeeding year while the mortgage exists.
1. Within the State by a resident judge, clerk or deputy clerk of
90

1418

BANKING AND COMMERCIAL LAWS- MINNESOTA

any court of record therein, a notary public. justice of the peace,
town, city, or village clerk, court commissioner, register of deeds.
or county auditor, or their deputies, county commissioner, or member
of the legislature. 2. Out of the State but in the United States
by a judge of the supreme, circuit. or district courts of the United
States, or of any court of record of any state, territory, or district,
the clerk or a deputy clerk of any such court, a notary, a justice ofthe
peace, or any commissioner appointed by the governor of this State
for that purpose. 3. In foreign countries by a notary public, or
by any minister, charg d'affaires, commissioner, consul, commercial
agent or other consular or diplomatic officer of the United States
appointed to reside in such country, and deputies of such officers.
day of .
The form of the certificate may be, " On this ..
described in, and
19 , before me personally appeared
who executed the foregoing instrument and acknowledged that he
executed the same as his free act and deed ." If made outside the
State the impression of the official seal of the certifying officer must
be affixed, or there must be attached the certificate of the clerk of
a court of record of the county or district in which it is made under
his seal that the signatureonof the certifying officer is genuine .
Actions. The distincti between actions at law and suits in
equity is abolished. There is only one form of action. It is called
a civil action and must be prosecuted in the name of the real party
in interest except that executors, administrators , trustee of an express
trust and persons expressly authorized by statute may sue without
Joining the person for whose benefit the suit is brought.
Administration of Estates. Estates of deceased persons are
administered in probate courts of which there is one in each county
presided over by the probate judge of the county .
In granting letters of administration preference is given : 1. To
the
surviving
spouseselect.
or next2. ofIfkin
such suitable
person
they
or either
of them
no or
application
is made
forasthirty
days after death of intestate, to principal creditor or creditors , or
some person interested , and if deceased was native of foreign country
to the consul or other representative of that country residing in this
State, or to such competent and suitable person as he may select.
Upon granting letters the court makes an order limiting the time
within which creditors may present their claims . This time must
not be less than six or more than twelve months ; but may be extended
for good cause to a date not more than eighteen months after notice
given of the order. On proof 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 newpaper
in the county . Claims not presented within time limited are barred .
Non-resident executors and administrators may sue in this State.
Aliens. (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 $250, and
an affidavit of the plaintiff, his agent or attorney. (1) That the debt
was fraudulently contracted or (2) the defendant is a foreign corporation 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. Capltal required is $ 10,000 in towns of 1,000 or less population ; $ 15,000
in towns of 1,000 to 1,500 ; $ 20,000 in towns of 1,500 to 2,000; and
$25,000 in towns exceeding 2,000 population. Capital stock must be
fully paid in cash before bank can do business." Stockholders are
. individually liable for debts of bank in an additional amount equal to
the par value of stock owned 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 llabilities, 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 property 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 of that in
which the property was then situated if a non-resident. Duplicates
or coples certified by any officer with whom the mortgage has been
properly fled, 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 len 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 executed 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 $ 10,000,
divided into shares of not less than $ 1.00 or more than $ 100 . The
Incorporators must sign and acknowledge a certificate specifying : 1.
the name, generalPeriod
natureofofits
business
and principal
ofNames
transacting
duration
if limitedplace
.
and
the same. 2.
places of residence of incorporators. 4. In what board manageinent 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 salesmen 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 transportation 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
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 preparation, 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 spousel 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 commencement 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
days at a
are returnable in sixty days and may be renewed for sixty
time on request of judgment creditor or his attorney. Personal property is sold on ten days' posted notice ; real estate on six weeks' published notice, and subject to redemption by judgment debtor or his
assigns within one year from date of sale.
Exemptions. Homestead outside of incorporated municipality
may include eighty acres. If in incorporated place containing less
than 5,000 inhabitants, 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, wearing apparel, beds, stoves, cooking utensils used by family, other household furniture not exceeding $ 500 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 husband 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 expiration of twenty days after service of summons. When docketed in those
courts they become llens 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. Transcripts ofcourt
Judgments
in docketed,
justice andand
municipal
courts
be filed
in
district
and there
then become
lienmay
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

BANKING AND COMMERCIAL LAWS - MISSISSIPPI
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 marriage 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 conveyance 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 subscribing 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
sale. may redeem within one year from the date of the foreclosure
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 succeeding day.
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 of
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
ofthe 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 I
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 1
is thereby revoked .
SYNOPSIS OF
THE LAWS OF MISSISSIPPI
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Messrs. WATKINS & WATKINS, Attorneys at
Law. Jackson. (See Card in Attorneys' List .)
Accounts. Sworn to entitles plaintiff to judgment, unless defenddenying. The affidavit must be by the creditor or
les
affidavit
ant
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 of 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 may be; 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 the party or partyacknowledged
and witness were identified before the officer, and that the party
the execuinstrument,
tion of the
witness
or witnesses
. or that the execution was duly proved by the
Actions.
as triable
to forms
Service
five term
days
before return All
day.distinction
All action
in abolished
the circuit. court
at first
in which the defendant has been personally served with process thirty
days before the return day. Mandamus, quo warranto , mechanics'
llens, 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
yearafterthe first publication of notice to creditors; registration stops
the general statute of limitations . All debts are to be paid before
distributors, or legatees. Claims against insolvent estates are
heirs,
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 or resident allens to acquire
property or dispose of it. Non-resident allens can not hold land , but
may take lens thereon to secure debts and purchase at foreclosure
thereof, and thereafter hold it for not longer than twenty years, with
power
citizen .to sell to a citizen in fee; or he may retain it by becoming a
Appeals from justice court to circuit court within five days. From
circult and chancery courts to supreme court within two years.
Appeals
courts. also in certain cases from board of supervisors and municipal

Arbitration . Parties may submit to arbitration of one or more
disinterested
judgment
. arbitrators, with agreement that proper court shall enter
Arrests
made by certain
officers, or private persons may arrest for
committed
offense
in his presence
. No arrests or imprisonment for
debt.

1419

Assignments and Insolvency. No Insolvent law. Debtor.
though insolvent, may prefer creditors, If in good faith and no benefit,
direct or indirect, is reserved. No provision for the discharge of a
debtor on his making an assignment. In general assignments, where
the value exceeds $ 1,000 , the assignee must give bond and administer
the trust in chancery. Preferences not prohibited . Practically superseded by bankrupt law.
Attachment. Against a debtor who is a non-resident or who
removes or is about to remove himself or property out of the State:
who absconds or conceals himself: or who incurred the debt in conducting the business of a ship, steamboat or other water craft in some
of the navigable waters of 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 sult has been
or is about to be brought, may be attached . In addition to those
named above, the following 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 contracts, 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 company, 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 of State
before debt will be due, with intent to defraud . Non-resident creditors have the same rights of attachment as resident creditors, whether
the debtor be resident or non-resident. Plaintiff must furnish bond
double the debt and make affidavit as to one or more grounds. Suit
does not abate on verdict for defendant, on a plea 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. Allen is acquired by
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 500 inhabitants or less, $ 10,000 ; in municipalities of 500 inhabitants or more.
$ 15,000. Additional capital to be paid in five equal monthly installments. Organizers to make oath that this is complled with. No
system of official examination, but all, except national banks, are
required to make a report, not less than four times each year, to the
auditor. And the auditor shall make requisition on all banks for
these reports to be made as of dates prior to the date of the requisition,
and such date to be known only to himself. Such reports shall be
verified and shall be published in full in a newspaper of the town or
city where the bank is located . Resources and liabilities shall be
stated in such reports. Banks collecting drafts with bill of lading
attached must hold funds at least ninety-six hours. Banks must
give notice to administrator or executor of deceased persons of deposits
of money and papers held for the deceased . Directors of every bank
to hold at least three regular meetings each year and keep a complete
record of all proceedings . Every bank with paid up capital of as
much as $100,000 may do business as trust company; may act as
guardian, receiver, etc.; may execute bonds in legal proceedings and
generally perform the duties of a trust company; may establish a
special mutual loan department; in such department interest on loans
not to exceed 8 per cent per annum . Bank not permitted to allow
the use of its name by others in making loans.
Chattel Mortgages and Deeds of Trust may be executed and
recorded as other mortgages. Foreclosure is usually by trustee's sale.
If property be removed to another county, mortgage must be there
recorded within twelve months to affect purchasers without notice.
Mortgages on property to be acquired are valid , but not on a changing
stock of goods if the mortgagor remain in possession and continue
business. Reservation of title by the seller of a chattel to secure
purchase money is valid without record, even against purchasers
without notice..
Collaterals. General law prevails.
Contracts for sale of land, or for lease for more than one year,
to be in writing . Same in regard to sale of chattels of the value of
more than $ 50, unless delivery in whole or in part is made. Dealing
in futures is forbidden and a ground for attachment. Gambling contracts and ordinary contracts made on Sunday void.
Conveyances. May vest title presently or in future. All estates
in land greater than for one year must be by deed , and to affect purchasers without notice must be recorded. Estates tail prohibited .
except that a deed or devise may be made to a succession of living
donees not exceeding two and to the heirs of the body of the remainderman, or, in default thereof, to the right heirs of the donor in fee.
Corporations convey under seal. In all other cases private seals
abolished. Conveyances or devises to two or more, or to husband
and wife, create tenancy in common. Rule in Shelly's case abolished.
Remainder good without particular estate . The words " grant,bargain, and sell" operate as a covenant that grantor is seized of some
estate of Inheritance. Words "convey and warrant" operate as a
general covenant of warranty. The words " convey and warrant
specially" operate as a warranty only against the grantor or those
claiming under him. A quitclaim deed has practically the same effect.
Husband and wife, if living together, must join in conveyance or
incumbrance of homestead of either, or it will be void as to all over
$2,000.
Corporations. Corporations except for the construction and
operation of a railroad other than street railroads, and the carrying
on of an insurance business, other than mutual insurance, may be
created under a general chapter.
Application for charter signed by each of the incorporators and
acknowledged . It must then be published three consecutive weeks
In a newspaper published at the domicile of the proposed corporation.
The application, with proof of publication, must be forwarded to the
secretary of state together with the fee for recording . The same to
the attorney general for his opinion as to the constitutionality and
legality of the proposed corporation, after which it is referred to the
governor for his approval or disapproval. The governor then returns
it to the secretary of state with his action endorsed thereon . If he
approve it. the secretary of state shall record it in his office and
certify to the same records, and transmits it to the applicants . It
must be recorded in the office of the clerk of the chancery court of
the county in which the corporation shall do business. Within thirty
days after the organization, the corporation must make report of
the organization to the secretary of state. If such report be not made
the charter granted shall be void, and all persons doing business
thereon shall be deemed partners in the business, and liable as such.
Corporations thus created possess the powers usual and incident
to private corporations generally, but existence is restricted to fifty

1420

BANKING AND COMMERCIAL LAWS

years. Corporations created as above named may hold property
necessary for their purposes, not exceeding one million dollars, manufacturing compaules 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 legislature 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 to $ 200 . Circuit courts have general jurisdiction
of all common law actions where the amount or value exceeds $ 200 ,
and jurisdiction of appeals from justices ' and mayors' courts, and
boards of supervisors. Chancery courts have jurisdiction 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
$50 originating in the justice's court. Suits of equitable cognizance
improperly brought in the circuit court are transferred to chancery
court, and vice versa. No suit dismissed because being of an equitable
nature it is improperly brought in the circuit court and e converso.
Creditors' Bills 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 promissory 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. If such party is absent and has
no attorney, filing interrogatories ten days sufficient. The officer
shall swear the witness to testify the truth, and shall impartially
examine him on the interrogatories. The testimony shall be fairly
written down by the officer or witness, or by a disinterested person in
the presence of, and shall be subscribed by the witness. Depositions
then certified , and transmitted by mail or other safe and convenient
manner to the court where the same are to be used . Officer's certificate prima facie evidence of his character.
Descent and Distribution. Estates of Inheritance, real and
personal descend : 1. To children and their descendants per stirpes.
2. To brothers and sisters in equal parts and their descendants by
representation. 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 preferred to those of the half
blood in equal degree. Where there is no one to inherit property
escheats . Illegitimates inherit from the mother and her kindred,
Exempt property of husband or wife descends to survivor and children
as tenants in common.
Divorces may be granted for: 1. Natural impotency. 2.
Adultery, in the absence of collusion. 3. Sentence to the penitentiary unless pardoned before being sent. 4. Wilful, continued,
and obstinate desertion for the space of two years. 5. Habitual
drunkenness. 6. Habitual and excessive use of oplum, morphine,
or other like drug. 7. Habitual cruel or inhuman treatment. 8.
Insanity or idiocy at the time of the marriage if party complaining
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 and bills of lading conclusive evidence in
favor of a bona fide holder that the property was received by the
issuer. (See also Accounts and Affidavits .)
Executions in circuit court issue within twenty days after the
adjournment of court unless otherwise ordered by the plaintiff, and
in Justices courts after the lapse of five days from judgment rendered,
unless recovering party makes affidavit that he is in danger, by delay,
of losing his debt or demand , in which case execution issues forthwith.
No redemption of property sold under execution or mortgage.
Exemptions. 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 plctures, drawings, and paintings, not exceeding five hundred dollars 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
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 .

MISSISSIPPI

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 hundred 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 nifty dollars per month; but this
paragraph shall not apply to a debt for board and lodging or a judgment 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 premiums 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, inclusive
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 $ 3,000 in value 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 performed on it or material furnished therefor.
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 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. Notes 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 Exemptlons.)
Husband and Wife. The disabilities of coverture are abolished.
as are dower and curtesy. Husband and wife may contract with
and sue cach other, but contracts for compensation for services rendered to each other are void . If husband rents wife's land. mules.
etc., and does business 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 vold 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 partnership
debts, andLegal
e converso.
Interest.
rate 6 per cent per annum, but parties may contract in writing for 10 per cent; when more is stipulated or collected
all interest is forfeited.
Judgments enrolled become liens on defendant's 'property within
the county. A junior judgment creditor may obtain priority as to
property levied on by him, if, after ten days ' notice, the senior judgment creditors fail to issue executions and point out the property.
Lien of judgment continues seven years.
Jurisdiction . (See Courts .)
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 llen for the
price of the same, provided the goods are still in the hands of the
purchaser or one having notice. The procedure is by affidavit, filed
at the commencement sult, stating that the purchase money is unpaid.
A writ of seizure issues, and the goods are taken. Title to personal
property may be reserved by the seller as security for the price, and
this is good even as against a subsequent bona fide purchaser, without any writing or record .
Limitations. Open accounts, accounts stated, and verbal contracts, express or implied, three years; all other contracts, six years ;
awards of arbitrators, six years : judgments and decrees rendered in
another state against resident of this, three years; rendered in this.
seven years; real actions, ten years. Actions to recover property
sold under order 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,
guardian, or other trustee, beneficiary, though under disability, is
barred when trustee is barred . Statute does not apply to suits on
notes or evidences of debt of banks or other moneyed corporations.
An acknowledgment 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 subdivision 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 . Husband and wife must 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 they are delivered
to the clerk for record ; with power of sale are foreclosed by sale in
pals: without power of sale, by sult 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.)

BANKING AND COMMERCIAL LAWS - MISSOURI

1421

Attachments. The writ may issue when the debtor is a non-resident ; or conceals himself so that the ordinary process of law cannot
be served ; or, has absconded or absented himself from his usual place
of abode in this State, so that process cannot be served : or, is about to
remove his property out of the State with intent to defraud , hinder, or
delay his creditors; or, is about to remove out of the State and change
his domicile; or, has fraudulently conveyed , concealed, or removed
his property, or is about to do so, to hinder or delay his creditors ; or,
has failed to pay the price of any article which he was bound to pay for
upon its delivery, or has fraudulently contracted the debt; or, where
the cause of action accrued out of this State and the defendant has
absconded or secretly removed his property into this State ; or, where
the damages sued for arise from the commission of a felony or misdemeanor or the seduction of a female; or, the defendant is a corporation whose chief office or place of business is out of this State. The
plaintiff, his agent, or attorney must make affidavit to one or more of
these grounds, and the plaintiff, except where the defendant is a nonresident, 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 capital must be
subscribed, one-half thereof paid up on organization, and the other
half within one year. Directors must be residents of this State. The
receipt of deposits with knowledge of the fact that the bank is in failing
circumstances, is punishable by fine or imprisonment, and officers
and agents consenting to the creation of debts with such knowledge,
are individually responsible therefor. Not more than 25 per cent of
its capital stock must be loaned to any Individual or corporation.
Large powers of supervision and control are vested in the secretary of
state. Private bankers must have a paid-up capital of not less than
$5,000 . A revised act approved March 18 , 1907 , making many changes
will take effect January 15, 1909.
Conditional Sales of personal property, unless recorded , are vold
as to subsequent purchasers in good faith and creditors .
Conveyances. A person may convey title to lands although not
in possession, and although the same be in adverse possession. An
Interest in real estate granted or devised to two or more persons other
than executors and trustees and husband and wife, Is a tenancy in
common unless expressly declared to be a joint tenancy. A conveyance to husband and wife creates an estate by entirety, as at common
law. The words " grant, bargain, and sell " covenant that the grantor
was seized of a fee simple indefeasible estate ; that it was free from
any incumbrances done or suffered by him or any person under whom
he claims : and for further assurances of the title to be made by him
and his heirs . Females of eighteen are considered of full age.
Corporations are formed under general law. In the case of manufacturing and most other business corporations, the capital must be
not less than $ 2,000 nor more than $50,000,000. The whole must be
subscribed and one-half thereof actually paid up. Part of the stock
may be preferred, paying not to exceed 8 per cent annual dividends.
Cumulative voting is permitted . Directors must not be less than
three nor more than thirteen ; three of them must be citizens and residents of the State. A stockholder having paid for his stock in full is
subject to no further liability. The capital may be increased or
diminished by a vote of the stockholders . Bonded indebtedness cannot exceed the authorized capital stock and cannot be increased
without the consent of a majority of the stockholders . The holders
of two-thirds in value of the stock may apply to the circuit court for a
decree for the winding up of the business .
A foreign corporation must file in the office of the secretary of state
a copy of its charter with a statement of the proportion of its capital
stock invested in Missouri, and pay certain fees. It then receives a
license to do business in the State. It must also maintain an office
in the State. Its personal property in this State may not be incumbered to the Injury of any creditor who is a citizen of this State, and
no mortgage by a foreign corporation except a railroad or telegraph
company, to secure a debt created in another State is effective as
against any citizen of this State until its debts, due to resident citizens
SYNOPSIS OF
at the time of recording the mortgage, have been paid . A corporation
falling to comply with these provisions is subject to a fine and cannot
maintain a suit in a court of this State. A corporation of any country
THE LAWS OF MISSOURI
outside of the United States before being authorized to transact business in this State must have a public office in the State, where books
RELATING TO
shall be kept, showing in detail its assets and liabilities, the names
and residences of its shareholders , officers , directors, and managers.
None of these requirements apply to insurance companies.
BANKING AND COMMERCIAL USAGES
Courts. Circuit courts have original jurisdiction in all cases of law
and equity and hold two or more terms in each year in each county.
Prepared and Revised by Messrs . GAGE, LADD & SMALL, Attorneys at Jurisdiction
of the settlement of estates of deceased persons is vested
Law, Kansas City. (See Card in Attorneys' List.)
in a probate court in each county . Justices of the peace have jurisAcknowledgments. Acknowledgments of instruments affecting 1 diction limited to $250 ; in counties and cities of over 50,000 the
real estate may be before one of the following courts or officers. 1. jurisdiction is $300. Appeals lie from judgments of justices and the
Within this State, some court having a seal, or some judge, justice or probate court to the circuit court.
Days of Grace are abolished . (See Negotiable Instruments .)
clerk thereof, a notary public, or some justice of the peace of the
County in which the real estate is situated. 2. Outside of this State
Depositions. May be taken on notice of at least three days and
and within the United States, any notary public, any court having a one
additional for every nifty miles of the first 300 and beyond that
seal or the clerk of such court, or commissioner of deeds. 3. Without one day
additional day for each 100 miles from the place of serving the
the United States, any court having a seal, the mayor or chief officer notice.
If taken outside of the State a commission issues from the
of any city or town having an official seal, any minister, consul or court in which the suit is pending. They may be taken within
officer of the United States, or notary public having a seal. The the State by any judge, justice of the peace,notary public, clerk ofa court.
official
certify that " before me personally appeared
mayor or chief officer of a city or town having a seal of office ; and if out
and should....
his wife, to me known to be the persons described in.
of the State by any officer appointed by authority of the laws of this
and who executed the foregoing instrument and acknowledged that State
to take depositions, a consul or commercial representative of
they executed the same as their free act and deed ."
the United States having a scal, or mayor of any city or town having a
the
action
Actions. There is in this State but one form of civil
seal, or any judge, justice of the peace, or other judicial officer, or a
practice being under a code. A non-resident plaintiff must file the notary public. They may be taken upon written interrogatories , but
this is not customary . The names of the witnesses or of the officer
written undertaking of some resident for costs.
need not be mentioned in the notice. Objections to the competency
Administration of Estates . The probate court in each county
or relevancy of the testimony need not be noted, but can be first made
has jurisdiction of the settlement of the estates of deceased persons .
when it is offered at the trial.
Claimsofpresented
to preferred
the court over
for allowance
within later.
one year
after not
the
Claims
grant
letters are
those presented
Descent and Distribution of Property. The real and personal
presented within two years from the granting of letters are barred.
estate
of an intestate descends and is distributed as follows : 1. To
Letters are granted : 1. To the husband or wife. 2. To those his children
or their descendents in equal parts. 2. If there be no
entitled to distribution, or one or more of them. If after the expira- children or their
descendants, then to his father, mother, brothers, and
tion of thirty days after death of deceased, such persons do not, on five sisters, and their descendants in equal parts. 3. If there be no childays' notice, appear and qualify, letters may be granted to any other dren or their descendants, father, mother, brother or sister, nor their
person. Non-residents cannot be executors or administrators , nor descendants, then to the husband or wife : If there be no husband or
executors or administrators maintain an action in wife, then to the grandfather, grandmother, uncles and aunts, and
may
this non-resident
State.
their descendants in equal parts. 4. If there be no children or their
Aliens. Allens or allen corporations may not acquire, hold or own descendants, father, mother, brother, sister, or their descendants,
real estate except such as may be acquired by inheritance or in the husband or wife, grandfather, grandmother, uncles, aunts, or their
ordinary course of justice in the collection of debts. Real estate descendants, then to the great-grandfathers, great-grandmothers, and
acquiredfive
byyears
an allen creditor at foreclosure sale must be disposed of their descendants, in equal parts, and so on, in other cases without end
within
.
passing to the nearest lineal ancestors and their children, and their
descendants in equal parts . Posthumous children inherit. When
Arbitration . Parties to a controversy may submit the same to there
are collaterals of the half blood , they inherit half as much as those
judgment
and
court
a
by
be
confirmed
award
their
and
arbitrators,
of the whole blood. Lineal descendants in equal degree take per
rendered thereon.
capital; but where part of them are dead and part living, the issue of
those dead take per stirpes. When a wife shall dle without any child
Arrest. No person can be arrested under civil process.
or other descendants in being, capable of inheriting, her widower shall
Assignments. Voluntary assignments must be for the equal be entitled to one-half the real and personal estate belonging to the
benent of all the creditors of the assignor and are administered in the wife at the time of her death, absolutely, subject to the payment of
clrcuit court. No such assignment operates as a discharge of the the wife's debts, and the widow takes a like share of the estate of her
assignor from his debts.
husband on his death without lineal descendants. An illegitimate

Notes and Bills 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 entliled 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 of grace. 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 holidays shall be presented on
the day before.
Partnership. Few statutory provisions . Governed by general
law. debts,
In case
property must go to pay
andofe insolvency,
converso. partnership
firm
Provision made for limited or special
partnerships.
Powers of Attorney. May be acknowledged or proved and
recorded 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, execution, or other judicial sale. Two years allowed for redemption of
land sold for taxes, saving to rainors and persons non compos mentis
a like period after removal of disability.
Replevin
lies to
personal
from
the owner.
Therecover
property
may be property
restored towrongfully
defendant withheld
on hond.
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, 23 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
improvements put on the land after two years from date
of sale.
Trust Companies. Provision for such companies with general
powers
Banks.)-to administer all trusts, make bonds and the like. ( See
Warehouse Receipts . (See Bills of Lading.)
Wills executed by anyone twenty-one years old, of sound mind .
As to land, if not wholly written and subscribed by testator, must be
attested by two subscribing witnesses. A nuncupative will ( of personalty) 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
personalty 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.

1422

BANKING AND COMMERCIAL LAWS- MONTANA

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; indignitles rendering condition intolerable ; vagrancy ;
prior to the marriage conviction of felony or infamous crime without
of the other party: pregnancy of intended wife at time of
knowledge
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 husband's estate asolutely, 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 tiled 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 llable 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 authority of the agent is in writing . Every gift, conveyance, or assignment
of or charge upon real or personal property made with intent hinder,
delay, or defraud creditors or defraud or deceive persons who to
shall purchase 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 interpleader. 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 4 , the first
Monday of September, any general primary election day, any 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 holiday, October 12 is
also a holiday, known as " Columbus," but is not such as respects com- I
mercial 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
and creditpaid that part in excess of the legal rate is deemed payment
ed 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. Partthat interest may be compounded , but not oftener
contractyear.
may
les
once
than
in a
Judgments. Judgments and decrees rendered by a court of record
are liens on the real estate of the person against whom they are rendered 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 1
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, lens of
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.
contained in any deed. 3.│
On any covenants of warranty or seizinnot
otherwise provided for.
For recovery of lands . 4. For relief
Within five years: 1. Upon contracts, express or implied, except
judgments or decrees of court. 2. Upon a statutory ability other
than a penalty or forfeiture. 3. Trespass . 4. Replevin, and for
or rights of another not arising on conany other injury to the person
tract and not otherwise enumerated . 5. For rellef on the ground of
fraud . Within three years: 1. Against publle 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
assault, battery, false imprisonment.
years Actions for libel, slander,
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 presumed 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 specitied amount in cash to the capital are not personally liable for the debts
of the partnership and have no power to transact its business. A
verified statement of the terms of the partnership must be filled with
the recorder of the county. There can be no limited partnership 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 transact business on her own account.
to contract and be contracted with, to sue 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 mortgage or deed of trust must be produced to the recorder when satisfaction 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 as conveyances of real estate, or unless
the mortgage or a copy thereof be filed in the office of the recorder of
the county of the mortgagor, or, where he is a non-resident of the
State, then in the office of the recorder of the county in which the
property is situated . Every such mortgage ceases to be valid after
the expiration of five years from the filing of the same.
Negotiable Instruments. The General Assembly of this State
has 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
estate, as
to do any act or business, including the conveyance of realsame
form
agent or attorney for another, when acknowledged in the
as required for deeds, may be read in evidence without further 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 sult, 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
according
provisions
the
charters
or general
lawsarebypayable
which they
may to
be the
governed
. In ofsome
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 judgment 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
will 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 comwitnesses subscribing their names to the will in the presence of
petent
the testator. If after making the will the testator shall marry and die
of his death, or born to
leaving issue of the marriage living at the timerevoked
. The will of an
his death, the will shall be deemed
after
him
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 às 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.
the probate thereof by
within two years afterReal
Wills may be contestedcourt
estate in this State
of the county.
petition to the circuit
may be devised by last will executed and proved according to the laws
according to the
be
bequeathed
may
of this State. Personal estate
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 Revised 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 peace.
clerk of any court of record , county clerk or notary public. 2. Outside Montana in the United States: Before the justice, judge or

BANKING AND COMMERCIAL LAWS - MONTANA
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
charg 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 within
jurisdiction of officer taking .
Must
in substantially following form: "State of 190. before
county ofbe........
s . S. On this
day of
known
(name and quality of officer) personally appeared
to be the person whose name is
to me ( or proved on oath of
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 corporation that executed the within instrument and acknowledged
to me that cuch 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 Estate 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,
notary 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 therewith.
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 court is irrevocable; otherwise it is revocable at any time
before award. An agreement to arbitrate cannot be specifically
enforced .
Arrest. Defendant in a civil action may be arrested when about
to leave the State or conceal his property, with intent to defraud
creditors, and in certain other action where fraud, wilful injury, or
wilful violation of duty, or wrongful conversion of money or property
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 co-erceive , 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
and not elsewhere, regardless of residence of stockholderslocated
.
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
four times in town or county where located . Each director must
own at least ten shares of the bank's stock. Bank may deal in real
estate only as is necessary to the proper transaction of its business,
or in realizing upon securities. Directors must declare semi-annual
dividend out of net earnings, and at same time make report to State
auditor of assets and liabilities, and publish once. Stockholders are
llable for banks' debts to extent of stock held by them. Their
llability continues six months after a transfer of the stock. Failure
to comply with requirements for sixty days forfeit franchise.
The total liability of any person, firm, corporation, or company to
any such bank for money borrowed shall at no time exceed fifteen
per cent of paid in capital and permanent surplus ; this does not apply
to discount of bills of exchange drawn upon existing values or of commercial paper owned by person negotiating same.
Each such bank must keep on hand funds equal to 20 per cent of
its
immediate liabilities half cash and half balances due from solvent
bank.
One hundred dollars to five hundred dollars penalty for
making new loans while reserve below the proportion . Laws provide
for
state
examiner, who visits and examines financial condition of
banks yearly
. Banks charged certain fees for State examiner fund.
Any employee, officer, or agent of any bank or person doing a bank
business, who receives deposits knowing or having reason to know
that such banking institution is unsafe or insolvent, Is guilty of felony,
and is liable to imprisonment for one to twenty years.
Banks may be dissolved by district court upon voluntary applicatlon, or when declared insolvent by state examiner. Saving bank
corporation may be organized with not less than $100,000 nor more
than $ 500,000 capital divided into shares of $ 100 each, $ 100,000 to
be subscribed in cash before beginning business. May do a general
deposit
and loan business . Stockholders llability to same extent as
in other banks .
Foreign banking corporations may establish branch banks in this
State upon compliance with certain special laws.
Bank is not liable for payment of forged or raised check, unless
claim is made within
one year after check is returned paid to depositor.
(Session 1909.)
Conveyances. Title to property of any kind ( except a mere possibility not coupled with an interest), including a right of re-entry for
, and property in the adverse possession
breach of condition subsequent
of another, may be transferred. Deed to several persons, except to
executors and trustees, creates tenancy in common, unless expressly
declared a joint tenancy in the deed. The fee simple title passes by
a grant, unless expressly limited to a less title in the deed . Covenants that the grantor has made no previous deed to any other per-

1423

son, and that the premises are free from incumbrance by the grantor
or any one claiming under him are implied from use of word "grant."
A married woman joining with her husband in any instrument
affecting real property is bound thereby the same as though single
if duly acknowledged by her. Instruments affecting real property
may, if acknowledged, be recorded , and such record imparts notice
to the world. (See Acknowledgments.)
Corporations are formed under the general statute, except banking, insurance and railroad corporations, and corporations not for
proft, which are governed by special laws. Stockholders have one
vote for each share, may vote in person or by proxy, and may cumulate votes in director elections. Articles of incorporations filed in
county where principal office located, and copy filed with secretary of
state; may hold only necessary real estate ; from three to thirteen
directors, who may be empowered to make by-laws ; control business:
stock issued for money or property; stock liability limited to unpaid
portion, directors assenting to creation of debts beyond subscribed
capital stock or making dividends out of capital stock are jointly and
severally liable therefor; stockholder may examine books; written
transfer or power of attorney to sell , and delivery of certificate passes
title, between parties and against creditors ; may be attached on
books of corporation. Every domestic corporation having a capital
stock must file report in county clerk's office, within twenty days after
December 31st of each year, showing amount of capital stock, amount
paid in cash, and amount paid in property, amount of existing debts,
and names and addresses of directors, president, vice-president, general manager and secretary ; directors neglecting to file are jointly
and severally liable for debts existing during failure to file; director
may exonerate himself by filing within ten days after default affidavit
showing that during the twenty days he asked president or sufficient
directors to file, and that default is not due to his neglect.
Foreign corporations, except insurance companies and corporations
otherwise provided for, may do business after filing with secretary
of state and in county where intend to do business, copy of charter
and verified statement of president and secretary, showing name,
capital stock, amount paid in money or property, assets and of what
consist, and their actual cash value, and amount of liabilities ; also a
consent to be sued and appointment of agent for service of process
and acceptance of same. If capital increased or diminished must file
certificate thereof with secretary of state and county clerk, and refusal
to do so forfeits right to do business in State. Must within two months
after April 1st, file report like verified statement just mentioned, in
county clerk's office, and copy with secretary of state. Can have no
greater rights or privileges than domestic corporations.
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. (Session 1909.)
Courts. District courts have original jurisdiction in law and
equity where over $ 50 involved ; have probate and criminal
jurisdiction. 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 lle 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 establish 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 nonresidents unless otherwise agreed, must be by written interrogatories.
Descent. Intestates' real and personal property, subject to payment 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 is 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 heir 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 prother
or sister 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 mentioned , 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. Illegitimate 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.
Annulment 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 lifetime , 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 no 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 asseat 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:
personalty
upon Defendant
seizure by
officer holding
writ. All becomes
property lien
sold on
to highest
bidder.
or creditor may redeem from sale of real estate within year, or sixty
days after previous redemption.

1424

BANKING AND COMMERCIAL LAWS - NEBRASKA

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 creditors ; to wilfully certify any false acknowledgment
with intent to defraud; to issue any faise 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 bands of innocent holder.
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 promissory ; 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 proceeding taken, and every act performed,
with intent to delay or defraud any creditor, or other person, of his
demands, is void against all creditors of the debtor and their representatives or successors in interst, 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 shall 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 assist, neither has any interest in others property, subject
to foregoing, but neither can be excluded 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 convey, 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 filling 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 couty 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
personalty or animals.
Limitations of Actions. Action upon judgment of any court of
record, action to redeem from mortgage when mortgagee is in possession, 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
insane, 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 lability for waste or trespass,
detainer of or injury to chattels, for relief on ground of fraud or mistake, 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 bsence 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 vald 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 byflling 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 Jolutly 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 faliure 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 primarily 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 presented on day it fails 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.
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 qualifted 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
inoney 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 certifes. If
holder has check certilled 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
examination 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 suretles,
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 than twenty-one and not
more than twenty-eight days after the first publication sale of the
real estate is made, subject to redemption within thirty-six months
from date of sale. The purchase money draws interest at 1 per cent
a month from the date of sale. The purchaser is entitled to a tax
deed at the end of the thirty-six months but must give thirty days'
notice to the owner or occupant of the property. Taxes are assessed
to the party in whose name the property stands of record on the first
Monday in March of each year. An inheritance tax of $ 5 for every
$100 worth of property must be paid by anyone, not a blood relation.
inheriting such property; and blood relations and adopted children
pay a tax of $ 1 for $ 100 worth of property inherited . Estates under
$7,500 not liable for inheritance tax.
Redemption may be made before deed 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 issuance. (Session 1909.]
Wills. Every person over eighteen years af 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 subscribed by the testator himself, or sone 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 contemplation , fear, or peril of death.
and must
be proved
within sixthereof
monthswas
after
statingtothewriting
testamen
tary
words
unless
the substanc
reduced
within
e
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.

BANKING AND COMMERCIAL LAWS - NEBRASKA

1425

be in market value thereof, the amount of rediscounts and of commercial
If acknowledgment taken in any other state or territory, itormust
territory
accordance with the laws of this State or of the state
paper past due, the amount invested in real estate, at cost, the amount
where taken, and must be before some court of record or clerk or officer of cash on hand and on deposit in banks or trust companies, with their
holding seal thereof, or a commissioner of deeds appointed by the gov- names and the amount deposited in each, and the amount of all other
ernor of this State for that purpose , or notary public, or justice of peace assets, together with such other information as the banking board may
If the officer have no seal, then the acknowledgment must have require. A summary of such report must be published in some local
newspaper and proof of such publication transmitted to the banking
attached thereto a certificate of the clerk of a court of record, or other
taken, under the board, and such board may call for special reports at any time. Fallproper certifying officer of the district or state where acknowledgment
seal of his office, showing that the person taking the
ure to make reports entails a penalty of $ 50 for each day's delinquency,
was, at the date thereof, such officer as he is therein represented to be; and those making false statements in such reports or in the books of
that he the bank may be punished as felons. It is likewise a felony for a bank
that he is well acquainted with the handwriting of such officer;
believes the said signature of the officer to be genuine, and that the to receive moneys or permit same to be received on deposit when the
deed or other instrument is acknowledged in accordance with the laws bank is insolvent; to loan to an officer or employe of the corporation
of such state, district, or territory . If acknowledgment taken in a without the approval of a majority of the directors ; to carry as assets
foreign country, it may be acknowledged before any notary public, any note or obligation of the partnership, member thereof, or individuminister plenipotentiary, extraordinary or resident, charg d'affaires, al, where such partnership or individual do a banking business ; to
commissioner, commercial agent or consul of the United States. In permit shareholders, where the bank is a corporation, to become inexecuting acknowledgment, notaries public must write in the date debted in a sum exceeding 50 per cent of the paid-up capital of such
or else said date must be imprinted on bank. Every stockholder is liable for debts accruing during his
when
seals. commission expires
their their
ownership of stock, for an amount equal to the paid-up value of the
Actions. Must be brought by real party in interest, except as to shares held, and all shares of stock are assessed in the place where the
is located, whether the owners thereof reside there or not, and
administrator,
trustee,
etc. Non-resident plaintiff must give security bank
taxes are a llen upon the stock. No savings bank shall receive defor costs.
Administration of Estates. (See Decedents .) County courts posits exceeding ten times its paid-up capital and surplus .
Bills of Exchange. (See Notes and Bills of Exchange . )
have exclusive jurisdiction over estates. Administration is granted
Bonds. (See Surety Bonds.)
to widow or next of kin, or both, or some one selected by them ; but if
unsuitable, or if they fail for thirty days after death of a party to apply
Chattel Mortgages. Every chattel mortgage, if not accompanied
for letters, same may be issued to a creditor, or to some one selected
by an immediate delivery of the goods and be followed by an actual
by the judge. Executors and administrators must give bond, as
continued change of possession thereof, is absolutely void as
required by the court, and must, within three months after appoint- and
creditors of the mortgagor and as against subsequent purment, make report of all property belonging to
deceased . General against
chasers
mortgagees in good faith, unless such mortgage, or a copy
letters of administration are only issued after due notice to parties thereof, and
filed in the county clerk's office where the mortgagor resides,
Interested, and if case is urgent a special administrator may be ap- and if hebebe
a non-resident, then in the clerk's office of the county
pointed, who shall name report within two weeks. Personalty is dis- where the mortgaged
property be situated. Such chattel mortgage
posed of under direction of the county court, but to sell real estate,
need not be acknowledged unless it convey household goods used in
license must be obtained from the district
court. Debts of decedent
the family by the husband and wife, or either, in which case it must be
are a llen upon all real estate.
and acknowledged by both husband and wife, the same as real
Affidavits. (See Depositions.) Affidavits may be made before signed
estate conveyances. Verbal mortgages are good between the parties.
anyone authorized to take depositions, and must be subscribed in It is a felony to transfer or dispose of personal property mortgaged
presence of the officer and sworn to before him , and this fact must be without procuring the consent of the mortgagee, or to remove same
stated in the affidavit . If made out of State and the officer has no seal,
affidavit must have attached thereto a certificate of clerk of a court out of the county with intent to defraud the mortgagee of his security .
Claims. (See Accounts, Administration of Estates.)
reciting authority of such officer.
Aliens. Non-resident ailens and foreign corporations may not own
Commercial Travelers . (See Licenses.)
or hold real estate in Nebraska, but the widows and heirs of such aliens
Code. (See Revision .)
who held lands prior to March 16, 1889 , have ten years to dispose of
their interests, and those who acquired their ownership prior to that
Conditional Sales. A sale or lease of personalty may be made
date may dispose of same during their life. If not so disposed of, the and title thereto retained in the vendor until the purchase price be
lands escheat to the State. However, non-resident allens may acquire fully
paid, or condition complied with, by having the contract of sale
a llen upon real estate, and, pursuant or subsequent to such, may puror lease in writing signed by the vendee or lessee, and then filing copy
chase such real estate, but shall dispose of same within ten years from
of
same
in the county clerk's office, with affidavit of vendor, his agent
time of acquiring title. These provisions do not apply to railroads nor
or attorney attached thereto, giving names and full and true interest
to real estate upon which buildings are erected and maintained for
of parties and description of the property, Such sale or lease shall be
manufacturing
nor declare
to thattheir
within
the corporate
of invalid at expiration of five years as against purchasers in good faith,
cities and towns.purposes,
Aliens who
intention
to becomelimits
citizens
or judgment or attaching creditors, unless the vendor or lessor shall,
of the United States thirty days before an election , conformably to the
within thirty days prior to the expiration of the five years, repeat the
laws of the United States on subject of naturalization, are electors,
filing,
which must be made annually thereafter. These sales are valid
same as citizens .
as between the parties and as against judgment or attaching creditors
Arbitration . Instead of submitting a controversy to a court,
and subsequent purchasers and mortgagees with notice.
parties may agree in writing to arbitrators, whose decision, after confirConsignments. It is a felony on the part of a factor or agent to
mation by the court, shall stand as a judgment.
whom goods have been consigned to sell or assign such goods with
Arrests. Arrest and imprisonment in civil actions for debt are intent to defraud the owner. Is also a felony for the owner of goods,
abolished .
after receiving an advancement upon the shipment, to sell or transfer
Assignments . (See Exemptions. Acknowledgments .) Every such goods contrary to the agreement between him and the consignee.
assignment for benefit of creditors shall be made to the sheriff of the
Contracts. Every contract for the purchase or sale of real estate or
county, and shall include all property of the assignor, except such as any
therein, except a lease for a period not exceeding one year
may be exempt. Assignments shall be executed and acknowledged frominterest
the making thereof, must be in writing and subscribed by the
the same as a deed to real estate, and within twenty-four hours after party to be charged . Every agreement by its terms not to be perIts
execution
be filed for
recorditinshall
the county
office,
and formed within one year from the making thereof, every special promise
If real
estate shall
is mentioned
therein,
also beclerk's
recorded
in the
to answer for the debt, default or misdoings of another. Every
register of deeds office, and within thirty days it shall be recorded in agreement, promise, undertaking made upon consideration of marany other county where property conveyed be situated . A creditor
riage, except mutual promise to marry, and every special promise of
may file and prove a claim and concurrent therewith, may pursue a
an executor or administrator to answer damages out of his own
separate remedy against the assignors for the collection of such claim.
estate, and every contract for the sale of goods and things in action .
Conveyances, preferences, payments, pledges or transfers of property for the price of $50, or more, shall be void unless note or memorandum
made by an Insolvent debtor in contemplation of such insolvency,
be made in writing by the party to be charged thereby. If, however,
within thirty days prior to making an assignment, are vold, except when contract for sale of goods and chattels of the value of $ 50 or
that the assignor may pay or secure clerks or servants' wages, not more is made, and a part of the purchase price thereof is paid , or a
exceeding $ 100 to any one person, and may pay or secure any debt
part of the
goods and chattels are delivered, to the buyer, no memorancreated within nine months prior to that time and may secure any
dum is necessary. (See Statute of Fraud .)
debt contracted simultaneously with the giving of such security.
Conveyances. (See Deeds, Mortgages, Conditional Sales .)
Attachments. The plaintiff at the commencement of an action
Corporations. (See Foreign Corporations .) Any number of permay have an attachment against the defendant's property, when the sons
may associate and incorporate for the transaction of any lawful
of the following
amount is due, by filing an affidavit showing any
grounds : 1. That the defendant is a foreign corporation or non- business, including the construction of canals, rallways, bridges, and
other works of internal improvements. Every corporation, as such,
resident of the State . 2. Has absconded with intent to defraud has
power: 1. To have succession by its corporate name. 2. T
creditors . 3. Has left the country or his residence to avold the servand be sued , to complain and defend in courts of equity and law.
vice of summons. 4. So conceals himself that a summons cannot sue
3. To make and use a common seal and alter the same at pleasure .
be served upon him. 5. Is about to remove his property, or a part
4 . To hold personal estate and all such real estate as may be necessary
of the court with the intent to defraud for
out .of 6.
the jurisdiction
thereof,
the legitimate business of the corporation. 3. To render all
his creditors
Is about to convert his property, or a part thereof, interest
of the stockholders transferable . 6. To appoint such
of
his
reach
the
it
beyond
of
placing
purpose
for
the
money
into
subordinate
officers and agents as the business of the corporation shall
creditors
he
conceals.
which
. 7. Has ' property or rights in action
require, and allow them a suitable compensation therefor. 7. To
8. Has assigned, removed, or disposed of, or is about to dispose of his
make
by-laws
not inconsistent with any existing law, for the manageproperty, or a part thereof, with intent to defraud his creditors. 9.
ment of its affairs. Every corporation previous to the commencement
contracted the debt, or incurred the obligation for which
Fraudulently
of any business, except its own organization , when the same is not
sult is brought . The affidavit must further show the nature of plain- formed
by legislative enactment, must adopt articles of incorporation
is just and the amount which athant believes
tiff's claim , that itrecover.
and have them fled in the office of the secretary of state ; and domestic
plaintiff ought to
No undertaking is required where the
corporations
must also
with the
county
clerkinsurance
in the county
where
the
State.
defendant is a foreign corporation, or is a non-resident of
companies,
their headquarters
are file
located,
except
mutual
in double the
an undertaking
must give
In
all other
and loan companies, loan and Investment companies, and
claimplaintiff
be seized by the officer it building
cannot
amount
. If property
of hiscases
banking institutions, which shall be filed with the state auditor and
may be reached by garnishment process.
state banking board. The articles of incorporation must fix the
Banking. Any corporation, partnership, or individual may trans- 1 highest amount of indebtedness of liability to which the corporation
act a banking business by first obtaining permission from the state
shall, at any one time , be subject, which must in no case excċed twothirds of the capital stock. (Exceptions made for insurance combanking board, which has supervision and control of all banking
panies, deposits in banks, loan and trust companies.) Must incorinstitutions in the State, and shail appoint examiners, whose duty
porate within one year after organization, or power ceases. Notice
it is to carefully investigate the affairs of each bank at least once a
year. Savings banks shall have at least $ 12,000 capital and other
must be published in some newspaper near the principalThe
place
of
banks shall have a capital as follows:
name
business, for four weeks. Such notice shall contain . 1.
In communities having inhabiof the corporation. 2. The principal place of transacting its busitants up to 1,500 , $10,000 ; over 1,500 and up to 2,000, $ 15,000 ;
ness
.
3.
General
nature
of
the
business
to
be
transacted.
4.
The
between 2,000 and 3,000, $ 20,000 : between 3,000 and 5,000 , $25,000;
between 5,000 and 10,000, $30,000 ; more than 10,000 , $50,000. Such
amount of capital stock authorized, and the time and conditions on
which it is to be paid in. 5. The time of commencement and terminacapital shall be in money, bank furniture, and the bank building and
ground on which situated, which ground shall be unincumbered, but
tion of said corporation. 6. Highest amount of indebtedness or
in no case shall the bank building and ground, together with furniture
Hlability to which corporation is at any time to subject itself, 7. By
and fixtures, exceed in value one-third of the paid-up capital, and the
what officers the affairs of the corporation are to be conducted . The
furniture and fixtures alone shall not exceed in value 10 per cent of notice required must be published within four months from the time
the paid-up capital. Before commencing business the bank shall
of filing such articles. Two-thirds of its members may dissolve cormake a detailed statement of the proposed business to the banking , poration unless otherwise adopted in articles of incorporation. Copy
board, which, after approval, shall issue a charter. Every bank must
of by-laws of the corporation, with the names of all the officers appendmake at least quarterly detailed reports under oath, showing the
ed thereto, must be posted in some conspicuous place at the place of
amount loaned upon bonds and mortgages, amount loaned upon notes,
doing business, subject to public inspection . Shall give notice annualbills of exchange, overdrafts, and other securities, with the actual ly, in some newspaper printed in the county or counties, or in State,

1426

BANKING AND COMMERCIAL LAWS- NEBRASKA

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 fall to do so, stockholders of corporation shall be
jointly and severally liable for all the debts of the corporation after
exhausting its assets, and for all debts contracted before sald 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 Nebraska or
any other State, must procure a state occupation permit from secretary of state, annually, before they may do business here. Schedule
of fees for such permit graduated according to capital stock as follows:
$ 10,000 or less, $ 5.00 ; $ 10,000 to $ 25,000 , $ 10 $ 25,000 to $ 50,000 ,
$20 : $50,000 to $ 100,000 , $30 ; $100,000 to $250,000, $50;
$250,000 to $ 500,000 , $75 ; $500,000 to $ 1,000,000 , $ 100 ; $ 1.000 ,000 to $2,000,000 , $ 150 ; over $ 2,000,000 , $200. Fee payable
July 1st of each year: delinquent September 1st, and $ 10 penalty added .
If not paid by November 30th, charter and right to do business in the
State are forfeited . 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
Imprisonment. 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 for all practical purposes.
open at all times except holidays; but their jurisdiction is limited.
District courts have general jurisdiction, and have exclusive jurisdiction 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 living . Residue to blood relatives. 4. If no husband or wife
surviving, to the children in equal shares and lawful issue of deceased
child
by representation.
no issue,
father
andtomother
or
survivor.
6. If no issue 5.norIfparents,
in to
equal
shares
brothers
and sisters and children of such deceased, by representation . 7. If
no parents nor brothers nor sisters, to next of kin in 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 notice is given by advertisement, and is not less than six
months nor more than two years after letters of administration issue.
Dower and curtesy 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 evidence only when the witness does not reside in
the county of trial or is absent therefrom, or is unable to attend court,
or is dead, or when written testimony is required instead of it being
oral; may be taken before various officers, but are usually taken before
a notary public . The officer must not be a relative or the attorney of
either party or otherwise interested in the event of the action, and this
fact should be stated in his certificate attached to the deposition. If
taken out of the State, and the officer has no seal, a certificate under
the great seal of the State , or of a clerk of a court of record under seal
should be appended , 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.
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 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 . Allmony and sult money allowed .
Dower. Abolished 1907. (See Decedents.)
Estates. (See Decedents .)
Executions (see Judgments, Proceedings in Aid of Execution
Mortgages) 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
confirmation of such sale. A stay of execution is allowed by giving
bond with approved sureties as follows : In district court within
twenty nays, 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 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
dwelling in which the party resides and appurtenances and 160 acres
of land on which same may be situated, or, at the option Such
of theexempt
party,
two contiguous lots in any incorporated city or village.
property shall be free from all judgment lens and from sale on execution, except that the homestead may be sold on foreclosure, of mechanics' lens, and of mortgages executed by both husband and wife.
If party has no homestead 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
exceeding $2,000 in value, is exempt. Exemption law does not apply
to claims for clerks, laborers or mechanic's wages, nor can an attorney
plead exemption in a suit for money or other valuable consideration
received by him.

Foreign Corporations (see Corporations, Aliens) may become
domestic by filing with the secretary of 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 legislature 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 in each year thereafter, le a statement with attorneygeneral 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.
Secreatry of state charges fee of $ 50.00 for keeping record of agent .
Penalty $25 fine. Does not apply to insurance companies and
railroads.
Fraud. (See Statute of Frauds. Limitations. Consignments .!
Conveyances made for the purpose of defrauding creditors are vold
and intent is deemed a question of fact, not of law.
Garnishment. (See Attachment.) Writ may be issued before
judgment 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 holiday or Sunday, except, first, to give instructions to a jury
then deliberating 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, Exemptlons. Married Women, Marriage.)
Infancy. Males under twenty-one and females under eighteen
are Infants. County court appoints guardians, but if infant over
fourteen years, may nominate his own. Infants' real estate may be
to obtain funds for maintenance by permission of
or mortgaged
sold
court.
district
Insolvents. (See Assignments.)
Interest. Legal rate is 7 per cent and contract rate 10 per cent.
Judgments draw same rate as specified in the instrument
which
judgment obtained , otherwise 7 per cent. A contract is notonavoided
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
confession and those rendered at the same term at which action commenced are liens only from date of rendition . Transcripts of judgment
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 countles by filing transcripts in the office of the clerk
of the district court in such counties. A judgment becomes dormant
in five years and lien upon real estate is lost if 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 judgment 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
required 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 furnished and labor performed, by filing in the office of the
register of deeds an itemized statement of account duly verified by
amdavit of party, showing amount due. nature of the contract
description of property, names of the parties; and if the claim arise
out of a written contract, or if a note or other written evidence has
been taken in payment 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 subcontractor within sixty days. Lien dates back to commencement of
work or labor and is valid for two years from date of filling . All
mechanics' liens on the same premises are of equal priority and prorate in the proceeds of sale of property, if sold under foreclosure thereof
Limitations. Actions brought to recover real property or foreclose 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, false imprisonment, and those to enforce penalties or forfeitures, must be commenced within one year. Actions for trespass to real property, taking,
detaining or Injuring personal property, upon contracts not in writing
upon the liability created by statute thereon, forfeiture or penalty for
injuries to rights not arising 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, contract in writing, promissory notes, etc.,Actions
and foreign
upon
judgments, must be commenced within five years.
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 the county clerk of every county where partnership shall have
a place of business. The special partner is not liable beyond the
amount contributed 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, Marproperty
rlage) may contract, bargain, sell, and convey their separateownership
in the same manner as may a married man. and retain
and control of their own property notwithstanding the marriage.
May sue and be sued, carry on trade or business as if unmarried, and
earnings of any married woman are her sole and separate property.
Mortgages. (See Actions, Acknowledgments, Courts. Dower.
Limitations, Chattel Mortgages .) Mortgagor, regardless of stipulation
contained in mortgage (and in the absence of special agreement, which
must be in a separate writing) , retains legal title and right of possession

E

BANKING AND COMMERCIAL LAWS -NEVADA

1427

A.

Affidavits. Affidavits taken out of this State to be used before
of property. In case of assignment of mortgage it is safer to record
the assignment. If note secured by mortgage is negotiable assign- any court or officer in this State must be taken before a notary public,
ment need not be recorded . Release may be by separate instrument a commissioner appointed by the governor of this State, or a judge of
or upon the mortgage records in register of deed's office, and if mortga- a court having a seal attested by the clerk. If in a foreign country
gee, after mortgage fully paid, neglects or refuses for seven days to such affidavits shall be taken before an embassador, minister, or consul
the United States, or judge of a court in such foreign country having
discharge such mortgage, he is liable to a penalty of $ 100 and all actual aofseal.
damages suffered by the other party. Mortgages can only be foreclosed by suit, and after foreclosure suit commenced no action can be
Aliens. Persons and corporations, except subjects of the Chinese
maintained at law upon the debt, and if action be first commenced
Empire, have the same rights as resident citizens and domestic corat law, cannot foreclose the mortgage until judgment obtained and
except that foreign corporations must comply with corporaexecution returned thereon unsatisfied . After decree of foreclosure porations,
tion laws of this State.
of mortgage obtained , defendant may stay further proceedings for
Appeals. Actions tried in justice court may be appealed to disnine months by filing a request for stay in the office of the clerk of trict
courts, where trial is had de novo and can proceed no farther.
the court within twenty days after such decree entered . Such stay Actions
in which the district courts have original jurisdiction may be
States, and owner
is equivalent to redemption period allowed in other
may redeem at any time before confirmation of sale. Deeds are appealed to the supreme court.
. Provision is made by law for the settlement of disArbitration
held to be mortgages when intended only as security, and must be
foreclosed same as mortgages.
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
Negotiable Instruments. (See Notes .)
civil action.
Notes and Bills. All notes, bonds, or bills of exchange, except
Arrest. A fraudulent or absconding debtor, or one who conceals
bank checks and instruments payable on demand, are payable at
his property, or removes or disposes of it with intent to defraud his
times fixed therein, without grace ; are not negotiable unless drawn
creditors,
may be arrested on affidavit of the fact made : surety in not
payable to a person, bearer, order, or assigns . If date of maturity fall
on Saturday or Sunday, a holiday, are payable on the next business less than $ 500 being given by the plaintiff. (See Attachment.)
day. Party purchasingornegotiable
paper before maturity, without
Assignments and Insolvency. Except as affected by the
notice, take same free from equities between original parties. Uniform national bankruptcy act of 1898 , the following statute respecting
assignment is in force: Insolvent debtors may be discharged from
negotiable instrument law is in force.
their debts by complying with provisions of insolvent laws. An assignPartnership (see Limited Partnerships) must adopt and sign
of insolvent debtor, not in compliance with insolvent laws, is
articles of partnership agreement showing firm name, nature and place ment
vold as to creditors.
of business, name and residence of each member, and file same in the
Attachment. Writ of attachment may be issued with summons,
office of the county clerk of the county where business is located .
or at any time afterward on affidavit and bond . In an action upon
Neglect or refusal to comply with this requirement entails penalty.
but does not effect legality of business transacted . Partnership may a contract for the direct payment of money, made, or by the terms
sue and be sued in the firm name, and it is not necessary to set forth thereof payable, in this State, which is not secured by mortgage,
In the pleading, or prove at the trial, the names of the persons com- lien, or pledge upon real or personal property, situated or being in
posing the firm, but in such event plaintiff must give security for costs. the State: If so secured, when such security has been rendered nugatory by the act of the defendant; or in an action upon a contract
Pleadings. (See Actions.)
against a defendant not residing in this State. In an action by a
Power of Attorney to convey real estate must be executed and resident
of the State for the recovery of the value of property, where
acknowledged same as deeds and may be recorded.
I such property has been converted by a defendant without the consent of the owner. Where the defendant has absconded , or is about
Practice. Regulated by code which is patterned after Ohio.
Probate. (See Courts, Decedents.) County court has exclusive to abscond, with intent to defraud his creditors. Where the defendant conceals himself so that service of summons can not be made upon
original jurisdiction of all probate matters.
him . Where a defendant is about to remove his property, or any
Promissory Notes. (See Notes . )
part thereof, beyond the jurisdiction of the court with the intent to
Proof of Claims. (See Decedents, Accounts.) Same rules of defraud his creditors . Where a defendant is about to convert his
evidence govern as in civil actions.
property, orany part thereof, into money with intent to place it beyond
the reach of his creditors. Where a defendant has assigned, removed,
Protest. (See Notes.)
disposed
or is about to dispose of his property, or any part thereof.
Replevin. Party may recover possession of personal property with the of,
intent to defraud his creditors. Where a defendant has
within four years after cause of action accrued by filing petition and fraudulently or criminally contracted a debt or incurred the obligaaffidavit of himself, agent or attorney, giving a description of the tion for which suit has been commenced . Garnishee process may
property, stating the facts connected with the ownership, and that he be had in aid of atttachment. The clerk of the court shall issue the
is entitled to the immediate possession , etc., of the property. It is writ of attachment upon receiving and filing an affidavit by or on
then seized by the officer and duly appraised , and within twenty- four behalf of the plaintiff, showing the nature of the plaintiff's claim, that
hours thereafter plaintiff must give bond in double the appraised value. same is just, the amount which the afflant believes the plaintiff is
conditioned that he will duly prosecute the action and pay all costs
to recover, and the existence of any one of the grounds for
and damages that may be awarded against him, and return the proper- entitled
an attachment above enumerated.
ty or its reasonable value to the defendant in case judgment for a
Banks.
State -are regulated and controlled by a comprehensive
return be rendered .
general banking law.
Revenue. (See Taxes.)
Conveyances . The husband has the entire management and control
Sales. (Sec Conditional Sales.) Merchant cannot sell in bulk
of the community property, with the like absolute power of disposition
without notice to creditors.
thereof, except as hereinafter provided , as of his own separate estate :
provided , that no deed of conveyance , or mortgage, of a homestead as
Statute of Limitations. (See Limitations .)
now defined by law, regardless of whether a declaration thereof has
Stay. (See Executions, Judgments, Mortgages .)
been filed or not, shall be valid for any purpose whatever, unless both
Suits. (See Actions.)
the husband and wife execute and acknowledge the same as now proSummons. (See Actions, Attachments. Divorce. Service. )
vided by law for the conveyance of real estate.
Corporations . The laws of this State are substantially the same
Taxes. Taxes on real property are a llen thereon from October 1st
as those of New Jersey. Foreign corporations to transact business
a llen thereon from
Taxes
property
are
year
levy.
on
personal
of
of
November 1st of year of levy. Tax deed may issue after two years and institute actions in this State must file certified copy of articles
from date of sale certificate. Inheritance tax runs from 1 per cent of incorporation with the secretary of state and county clerk.
upward. For all real estate taxes delinquent one year or more, the
Courtesy is not recognized in this State.
county may sell the property by action in court.
Courts. Jurisdiction . District courts have original. statutory,
Trust Deeds are seldom used and are treated as mortgages.
and common law jurisdiction in all cases at law and in equity, also in
Wills. (See Decedents .) Every person of full age and sound law, when the title or possession of land or mining claims may be
mind may dispose of his property by will, which must be signed by involved, or legality of any tax, etc., also in actions to foreclose
the testator, or under his express direction , by some one in his presence mechanics' lien ; and in all cases in which the demand, exclusive of
or the value of the property in controversy exceeds $ 300 .
and subscribed in his presence and in the presence of each other, at interest,
and in probate in all cases relating to estates of deceased persons, and
his request, by two or more competent witnesses. Nuncupative wills persons
and estates of minors, insane persons. Justice's jurisdiction ,
of three witnesses present at the
are valid when proved by the oath
making thereof, and when the testator at the time asked the persons $300, exclusive of interest, and attorney's fees.
to bear witness that such was his will , or words of like effect. No will
Depositions. Depositions may be taken within this State before
shall be effectual to pass title to any property unless probated . Foreign any judge, clerk, justice of the peace or a notary public, upon notice
wills duly proved and allowed in any state or foreign country may be to the opposite party of the time and place of taking. Depositions
probated in this State in any county wherein the testator shall have may be taken out of the State upon commission under the seal of the
real or personal property, on which the will shall operate.
court upon proper application, or by stipulation of the attorneys .
Witnesses. (See Evidence . )
Divorce. Jurisdiction. Plaintiff is required to be a bonafide 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
SYNOPSIS OF
action is instituted . Grounds - Either impotency, or adultery, or
desertion for one year, or conviction of felony, or habitual gross
drunkenness
, or extreme cruelty, or neglect to provide the necessaries
THE LAWS OF NEVADA
of life for one year.
RELATING TO
Dower is not recognized in this State.
Executions. Stay of Execution : Judgments. The laws of Nevada
BANKING AND COMMERCIAL USAGES
on these points are similar to those of California [see antel, except
that when redemption is made of real estate, 18 per cent must be paid
Prepared and Revised by JEROME L. VAN DERWERKER, Attorney and in addition to purchase money.
Counselor at Law, Reno. (See Card in Attorneys' List.)
Exemptions. Homestead, $ 5,000 : $50 of the earnings of the
if earned thirty days preceding, if it is made to appear necesAcknowledgments may be taken within the State by a judge or debtor,
for the support of the debtor, or his family: personal and mining
clerk of a court having a seal, or by a justice of the peace or notary sary
property,
tools, implements, etc., exempt same as in California [which
public. If taken by a justice of the peace in any county in the State i see).
other than the county in which the land is situate, a certificate of
Garnishment.
(See Attachment .)
the county clerk is necessary, showing he was an acting justice when
the acknowledgment was taken. If without the State, but within
Holidays. Sunday, New Year's Day, Washington's Birthday.
the United States, by a judge or clerk of a court having a seal , or some Memorial
Day, Fourth of July, October 31st (Nevada admission day) .
notary public or justice of the peace, or by any commissioner appointed
Thanksgiving, and all days on which a general election is held, are nonby the governor of this State for that purpose. Provided, that when
days and are termed legal holidays and generally observed
the acknowledgment is taken by a justice of the peace, the same shall judicial
as such. Also Arbor day fixed by proclamation of governor one
be accompanied by the certificate of the clerk of a court of record of month before fixing such date, and is only a holiday for public schools.
the county, having a seal, as to the official character of the justice
Bills of exchange, checks, promissory notes, and other negotiable
and the authenticity of his signature. If without the United States,
instruments falling due upon any holiday are payable the day previous .
by some judge or clerk of any court of any state, kingdom or empire
Husband and Wife. (See Married Women .)
having
a
seal,
by
or
any
notary
public
therein,
by
or
any
minister,
commissioner,
or consul of the United States, appointed to reside
Interest. The legal rate is 7 per cent per annum, but parties may
therein . An acknowledgment
sufficient
under
the
laws
where
taken
contract in writing for the payment of any other rate. After a judgis sufficient in the State of Nevada.
ment
on such a contract, only the original claim shall draw interest.
Actions . (See Limitations.)
and the rate of Interest must be mentioned in the judgment.

1428

BANKING AND COMMERCIAL LAWS- NEW HAMPSHIRE

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
prosecuting 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 courtsix years ; of the justices court-five years. Revivor: Acknowledgment or new promise 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 children, to the widow. The husband may dispose of one-half of the common 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 possession 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 foreclosed by action for foreclosure.
Notes and Bills of Exchange. The 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 proceedings and notices are dispensed with, except the notice of the
appointment of the executor or administrator. Creditors of such an
estate must file their claims within forty days.
Suits. Practice is under a code, and there is but one form of action,
known as a civil action, and commenced by filing complaint with the
clerk of the court and the issuance of a summons. Service on nonresidents may 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 in March in each year.
Sults for delinquent taxes may be commenced by direction of the
county commissioners, 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
signature of the grantor must be attested by two witnesses.
Actions. The common law prevalls 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 resides. If both are non-residents
the action may be brought in any county.
Administation of Estates. Administration shall be granted in
the following order of precedence : To the executor named ; to the
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 it. 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 arst 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 sickness shall
be
paid in
fullArbitration.)
if there remains anything after paying the preferred
claims.
(See
Affidavits. Amdavits 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
Attachments.)
Aliens. They are not entitled to vote. Ar allen 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 allen 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 founded upon a
contract or upon a conditional sale of clothing ; nor 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 suspended
by the United States bankrupt law.
Attachments of all real and personal property may be made on
the original writ, and constiture a valid llen on the property for thirty
days after judgment, within which perlod the execution must be levied
to preserve and perfect the lien All attachments take precedence
in order of priority, except in case of lens of builders, contractors,
etc.. when they take precedence in the order or 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 agalust claims for necessarles 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 detalled 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 December
in each year, make a statement of its condition on said day, specifying 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 be signed
sworn to by the
cashier, and returned to the secretary of state. and
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 newspaper 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, for more than seven years .
shall be signed , sealed, attested by two or more witnesses, acknowledged before a justice of the peace, notary public, or commissioner.
and recorded in the registry 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 requirements of law.
Corporations. Corporations can be chartered by the legislature .
Voluntary corporations can be formed for any purpose except bankIng, life insurance, rallroading or trading-stamp business . Five persons may associate themselves together under written articles of
agreement, which articles shall set forth the corporate name, its
object, place of business, and amount of capital, which may be anywhere from $ 1.000 to $5,000,000, with the par value of the shares at
not less than $ 25 or more than $ 500. This agreement 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 jollows : $10 on a capital of less than $25,000;
$25 on a capital between $ 25,000 and $ 100,000 ; $ 50 on a capital
between $ 100,000 and $500,000 ; $ 100 on a capital between $ 500,000
and $ 1,000,000 ; and $ 200 where it exceeds $ 1,000,000. The said
charter fee shall be paid when the articles are recorded . The clerk
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 clerk . Every corporation, 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 over all causes.
The supreme court decides questions of law upon bills of exception,
transferred from the superior court, and it holds its sessions every
month, except July and August. Probate courts have jurisdiction
over estates of deceased persons, insolvent estates, minors , insane
persons, adoptions, change of names, trustees, and partition of real
estate. Police courts and justices of the peace have concurrent jurisdiction with the superior court up to $ 100 when the title to real estate
is not involved, and can render judgment upon confession up to
$200. The terms of the superior court shall be held in each year at
the times and places following: For the county of Rockingham, at
Exeter, on the third Tuesday of January and the third Tuesday of
April; and at Portsmouth on the third Tuesday of October. For the
county of Strafford, at Dover, on the second Tuesday of February,
and the third Tuesday of September. For the county of Belknap, at
Laconia, on the first Tuesday of March and the first Tuesday of
November. For the county of Carroll, at Ossipee, on the third Tuesday of May, and the second Tuesday of November. For the county
of Merrimack, at Concord, on the first Tuesday of April and the first
Tuesday 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 seeond Tuesday of May and the second Tuesday of November. For the
county of Coos, at Lancaster, on the third Tuesday of April : at Colebrook, on the first Tuesday of September, and at Berlin, on the first
Tuesday of December. For the county of Grafton . at Plymouth, on
the second Tuesday of May; 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
att'y of record : Depositions will
"To A. B. C., of etc., or
in
In the County of
be taken at the office of
19.
on the .. day of
and State of
noon, in which action
is pla
at
o'clock in the
Court to
and
is deft., to be heard and tried at the
day of
on the
be holden at
in the County of
19
this
day of
... 19 ... Dated at
Justice of the Peace."

BANKING AND COMMERCIAL LAWS - NEW HAMPSHIRE
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 commissioner. They can only be taken by written questions
and answers proposed by counsel and administered by the magistrate. Objections are minuted on the deposition by the magistrate,
but he does not pass upon the validity of such objections. Depositions shall be signed by the deponent, and he shall be sworn to testify
to the truth, the whole truth, and nothing but the truth . They must
be enclosed in an envelope and sealed up by the magistrate, with the
following endorsement:
To the Supreme Court.
to be used in the action
Enclosed is the deposition of
VS.
of
Sealed up by me
Justice of the Peace .'
They should then be mailed to the clerk of the court where they are
to be used . No deposition can be used in a jury trial unless taken
before the Tuesday next preceding the Tuesday on which the term
commenced .
A copy of the notice with the affidavit of service must be annexed
to the deposition . The following is a form for the caption of the
deposition :
"State of
County of
Personally appeared before me, a Justice of the Peace within and for
on the ... day of
said County, the within named
19 ... at ... o'clock in the
noon, at the office
of
in said County,
Street, in
and made oath that the annexed deposition by him subscribed contains the truth, the whole truth, and nothing but the truth relative
to the cause for which it was taken. Sald deposition is taken at the
of
.. to be used
request of
in the
Court, in an action now pending (or to be
entered) in said Court, wherein of, etc., is plff. and of, etc., is deft.
o'clock in the
The taking of said deposition was begun at
...noon of said day, and was continued until finished . The
said
was (not) present
and
did (not) object.
this
....
day of
19
Dated at said
Justice of the Peace ."
Descent of Property. The real estate subject to dower or curtesy
and homestead shall descend in equal shares as follows: 1. To the
children and to the legal representatives of such of them as are dead .
2. If there be no issue, to the father and mother in equal shares, if
both are living, and to the father or mother, if one of them is dead.
3. If there be no issue or father or mother, in equal shares to the
brothers and sisters or their representatives . 4. To the next of kin
in equal shares . If a person dies under age , his estate , derived by
descent or devise from his father or mother, shall descend to his
brothers and sisters, or their representatives, if any, to the exclusion
of the other parent. No representation allowed beyond the degree
of brothers' and sisters ' grandchildren . The personal estate shall be
distributed as follows : 1. To the widow, her share according to
law. 2. To the same persons who would take as in the case of
realty . The widow is entitled , In addition to her dower and homestead, to one-third or one-half of the personalty, as she does or does
not leave issue surviving , and she holds the same interest in the real
estate, by releasing her dower and homestead, and by waiving any
provision in the will in her favor. In case the real estate (provided
no issue survives) does not exceed $ 1,500 in value, the survivor,
husband or wife, takes the whole thereof. The same provision exists
as to distribution of the personalty. As to any balance above $ 1,500,
the distribution is made according to the other provisions of the law,
as above set forth . A surviving husband has the same rights in his
wife's estate that a wife would have in her husband's estate. (See
Dower.)
Divorce. The jurisdiction of the court shall be confined to actions
commenced : 1. Where both parties were domiclled within the State
when the action commenced. 2. Where the plaintiff was so domiciled ,
and the defendant was served personally with process within
the State. 3. Where one of the parties was so domiciled , and one
or the other resided within the State for one year next preceding the
beginning of the action.
Dower. A widow is entitled to dower in the real estate of which
or
her husband died seized, excepting in land not under cultivationmay
In a wood lot not used in connection with a farm. The dower
be assigned by metes and bounds, and the widow has an undivided
net third part of the rents and prouts until dower is assigned . She
may be endowed with so much of the real estate of her late husband
as will produce a yearly income equal to one-third of the total income.
Evidence. Persons are not excluded from testifying because of
interest, except where the party is an executor, administrator or
guardian of insane, and the subject of the testimony occurred during
the life of the deceased, or prior to the ward's insanity, unless the
executor, administrator, or guardian of the insane person elects to
testify ; or, when it is clearly shown to the court that Injustice may be
done by the exclusion of the testimony of such person. Husband and
wife are competent witnesses for or against each other, except as to
matters, which in the opinion of the court, might lead to the violation of marital confidence . In criminal proceedings , 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
appears
have been
through
accident,
mistake,
misfortune.
or injustice
Real to
property
takendone
under
execution
may
be redeemed within one year.
Exemptions. Homestead to the value of $500 ; necessary apparel
and bedding 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
exercise of its equity functions, has jurisdiction over frauds.
Garnishment . Known to our law as trusteeing . Any personal
action except trespass, defamation of character, and malicious prosecution, 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 table, page 13.)
Husband and Wife. They may make ante-nuptial agreements
which can be in lieu of dower, homestead, and distributive share. (See
Descent of Property. Dower, Divorce, Married Women,
Allens,
Arrest,
and Wills
.)

1429

Interest. At the rate of 6 per cent per annum. If any person ,
upon any contract, receives at a higher rate than 6 per cent, he forfelts 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 current accounts interest commences from date
of demand for payment, unless controlled by the custom of trade,
which is a question of fact to be determined by a trial thereof.
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 be void . 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 llen 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 required, if the value
of
the property
exceeds
100,town
and clerk.
a sworn return of said sale shall be
recorded
in the office
of $the
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 husband, to their sole and separate use, as if unmarried. All their
contracts 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 ante-nuptial debts,
and cannot convey his improved real estate so as to bar his wife's
right of dower and homestead without her consent. Married women
of the age of twenty-one years may dispose 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
ineffectual 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 witnesses 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. 3. By the mortgagee
. 4.
in possession taking formal possession under the second method
By a sale under the provisions of a power of sale mortgage. Mortgages
and mortgagee
effectual, the mortgagor severally
of personal property, to be
swear
must take and subscribe the following oath : "We
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 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
walves 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. To charge indorser,
notice of non-payment must at once be given to him . Time of
Maturity : Every negotiable instrument is payable at the time fixed
therein without grace , except sight drafts. When the day of maturity
falls upon Sunday, 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 day, except that Instruments payable on demand may, at the
option of the holder, be presented for payment before 12 o'clock, noon.
on Saturday, when that entire day is not a holiday . (See Holidays .)
Power of Attorney. (See Conveyances.)
Probate Law. The probate court is a county court, and holds
numerous sessions in various places. Proceedings are begun by petition and citation 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 trustees 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
sufficient . (See Notes and Bills.)
Replevin may be brought to recover goods or chattels in specie .
The question of right of possession being in Issue, the plaintiff shall
give bond to the sheriff in a sum not less than double the value of
the property 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 1st of each year) . One year from the day of sale is

1430

BANKING AND COMMERCIAL LAWS - NEW JERSEY

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
twenty-one 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 testator 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 producion of
an authenticated copy thereof, together with an authenticated copy
of the probate thereof.

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 nonresident creditor. Garnishment can be effected only in attachment
cases . Where caplas ad respondendum will issue in an action upon
contract, an attachment will lie; awarded by court or a judge thereof,
or supreme court commissioner upon affidavit filed as required to obtain capias ad respondendum. Attachment will issue against female,
corporation or organization as if such defendant were liable to arrest.
(In actions of tort attachment will issue if summons 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 and particulars, and that the
defendant absconds from his creditors or is not resident and that summons cannot 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 or devisees of decedent, and that some of such are
unknown
or non-resident and there is property of decedent in this
SYNOPSIS OF
State liable to answer the cause of action.
Banks are incorporated under special act . Under certain conditions may purchase, hold, and convey real estate. Have the same
THE LAWS OF NEW JERSEY
general powers and are subject to the restrictions and liabilities contained in the general corporation act, so far as the same are applicable.
RELATING TO
Every bank shall make at least four reports each year to commissioner
of banking and insurance. These reports shall be published in newspaper
where bank is located. Individual or private bankers are
BANKING AND COMMERCIAL USAGES
subject to the supervision and control of the department of banking
insurance.
and
(See P. L. 1899 , p . 431.)
Prepared and Revised by JEROME D. GEDNEY, Counselor at Law,
Chattel Mortgages. Chattel mortgages to be valid must be acEast Orange. (See Card in Attorneys' List.)
knowledged as deeds and affidavit of the consideration must be made
Acknowledgments of deeds are made within the State before the by the mortgagee. They must be recorded . In case household goods
chancellor or a justice of the supreme court, a master in chancery,
are mortgaged, the wife must aiso join .
attorney at law, judge of the court of common pleas, commissioner of
Collaterals. As security for loans, regulated by commercial law.
deeds, surrogate of county, or a deputy surrogate, or register of deeds,
Pledges
of property to pawnbrokers regulated by statute.
county clerk, or deputy county clerk during his continuance in office;
Contracts. The following must be in writing : Leases for a longer
without the State, before a justice of the supreme court of the United
States, circuit or a district judge of the same, or a judge or justice of term than three years. Assignments , grants, or surrender of leases .
the supreme or superior court or chancellor of the State, district, or
Declarations or creations of trust (does not interfere with implied or
territory , or before any mayor or chief magistrate of any city, borough,
constructive trusts) , grants and assignments of trusts. Special
or corporation , duly certified under the seal of such city, borough, or promise of executor or administrator to answer out of his own estate.
corporation, or before a judge of the court of common pleas or county
Special promise to answer for the debt, default, or miscarriage of
court of such state, district or territory, or commissioner for New any other person. To charge any person upon any agreement made
upon promise of marriage. Contract or sale of lands, tenements, or
Jersey, or by a master in chancery, or attorney at law of this State, or
by any officer authorized at the time of such proof or acknowledgment,
hereditaments or any interest in or concerning them . Any agreement
not to be performed within one year of the making thereof. Contract
by the laws of the State wherein the same shall be made or taken, to
take the acknowledgment of deeds of lands lying and being in such for the sale of goods of the value of $ 500 or upward (acceptance of
state. In case the acknowledgment is made before a mayor or chief . part of the goods or payment of part of the price obviates necessity
magistrate, the certificate must be attested by the seal of the city; if of writing) ; applies to sales for goods to be made as well as such are
before a judge of the court of common pleas or county court, or other in existence, unless goods are to be made especially for purchaser
officer, it must be attested by seal of such court, and certified by the and are not suitable for sale to others in ordinary course of seller's
clerk of the court. If before an officer not enumerated but authorized
business. Promise made after coming of age to pay debt contracted
as above stated, it must be certified that he is such officer and
in infancy. Promise of bankrupt to pay after discharge. Commissions
authorized, at the time of taking such acknowledgment, to take ac- to broker or real estate agent, authority to sell must be in writing and
rate of commissions stated. In case of debts fraudulently contracted .
knowledgments and proofs of deeds or conveyances for lands, tenements, and hereditaments in the State in which the acknowledgment
suit may be brought for recovery as soon as the fraud is discovered.
was taken. In foreign countries acknowledgment or proof may be
notwithstanding debt may not be due.
made before a master in chancery, any court of law, notary public.
Conveyances. Usually bargain and sale or warranty . Must be
mayor, or chief magistrate, or any ambassador, consul, consular agent,
acknowledged to be recorded . (See Married Women.)
or other representative of the United States.
Corporations. Corporations are formed under the general act:
Actions which arise from breach of contract are entitled “upon
insurance , safe deposit or trust companies, banking corporacontract:" for damages to person or property "in tort. " The former however,
tions, savings banks, railroad companies, or turnpike companies, or
covers the common law actions assumpsit , covenant, debt; the latter, such
companies which intend to derive profit from the loan or
detinue, trespass, trespass on the case, trover. The actions of replevin use ofother
money, or which shall need to possess the right of taking or conand ejectment are not within the purview of the rule and are to be demning
land,
must be incorporated under special act governing such
entitled as such.
. The certificate of incorporation shall be signed personally
Administration of Estates. Wills are proved before the ordinary companies
by
all
subscribers
capital stock and set forth: 1. The name
of the State, or the surrogate of the county, and letters testamentary of the corporation. to2.theThe
location of its principal office in the State.
are granted . In case there is no will, letters of administration are 3. The object or objects for which the corporation is formed. 4 .
granted. Should there be a contest of the will or dispute as to the
The amount of the total authorized capital stock of the corporation,
right of administration, the orphans ' court has power to act . This which shall not be less than $ 2,000, the number of shares into which
court is also the proper tribunal for all disputes in matters of estates,
same is divided , and the par value of each share. The amount of
is the auditor of all accounts, and has varied powers in matters regardcapital stock with which it shall commence business to be not less than
ing estates, such as the right to appoint trustees under a will, partition $ 1,000, which may be paid either in cash or property, and if there be
where minors are interested in lands, etc.
more than one class of stock created by the certificate of incorporation,
Affidavits in the State may be taken before the chancellor, judge of a description of the different classes with the terms on which the
respective classes of stock are created . 5. The names and post-office
court of record, master in chancery, Attorneys at Law of New Jersey,
address of Incorporators and the number of shares subscribed for by
Justice of the peace, mayor, recorder, or alderman of any city or each,
the aggrevate of which shall be the amount of capital stock with
borough, supreme court commissioner, city clerk, clerk or surrogate
of any county, clerk of a court of record , notary public, commissioner which the company will commence business, and shall be at least
$ 1,000. 6. The period, if any, limited for the duration of the comof deeds.
certificate of Incorporation may also contain any
Aliens. No restrictions as to holding property. Foreign corpora- pany . 7. asThe
to the regulation of the business and conduct of the
tlons, other than municipal, may purchase, use, and convey real provision
affairs of the corporation, and any provision creating, denning, limitestate in New Jersey . (P. L. 1903 , Chapter 22.)
ing, and regulating powers of the corporation, the directors and the
Appeals . From Justice's court to court of common pleas of county. stockholders, or any class of stockholders, provided such provision
From district court to supreme court on question of law or evidence . be not inconsistent with the act concerning corporations. Every
From common pleas or circuit court to supreme court. From circuit certificate and report must give address of New Jersey office and name
or supreme court to court of errors and appeals. Except in first two of agent in charge thereof, upon whom process against the corporation
cases chiefly by writ of error. From orphans' court to prerogative may be served. Directors shall be stockholders, and shall be chosen
court. From prerogative court or court of chancery to court of errors annually by the stockholders . They must be three in number, at
and appeals.
least. The officers are chosen annually; president must be a director.
One director must be a resident of the State of New Jersey . CorporaArbitrations may by the submission be made a rule of court, con- tion
may determine the manner of calling and conducting all meetings.
cluding the parties, by the award.
what number of shares shall constitute a quorum. (P. L. 1901 ,
Arrests . In civil actions, upon contract, a debtor may be arrested and
p.
260.
) When corporation is insolvent, remedy is by bill in chancery,
under the following circumstances : 1. When he is about to remove
application for and appointment of receiver of such insolvent comany of his property out of the jurisdiction of the court in which an the
pany. Laborers and workmen have first lien upon assets to a limited
action is about to be commenced with intent to defraud creditors.
amount. Liability of the stockholder ceases when shares are fully
2. When the defendant has property or rights in action which he
paid for, or in other words, a stockholder is only liable to the amount
fraudulently conceals. 3. When he has assigned , removed, or disof his unpaid subscription to the capital stock. Foreign corporations
posed of, or is about to assign, remove, or dispose of, any of his property
are subject to the provisions of the general corporation act in so far
with intent to defraud creditors . 4. When he fraudulently conas the same are applicable; the provisions of which having been comtracted the debt in question. No capias will issue except by order of plied
with, there is issued by the secretary of state to such foreign
court, judge, or court commissioner.
corporations a certificate that it is authorized to transact business in
Assignments and Insolvency . The Insolvent laws provide for I this state . It is unlawful for a foreign corporation to transact busithe discharge of a person under arrest for debt or damages on his ness in this State until such certificate is obtained . Foreign corporadelivering up all his real and personal property to his creditors.
tions, other than municipal, may purchase, use, and convey real estate
Assignments by debtors for the benefit of creditors must be without in New Jersey. Associations not for pecuniary profit may incorporate
preference, and all others are vold . Debtor must annex sworn in- under special law providing for such incorporation . A copy of the
ventory. Wages of servants, clerks, and laborers up to $300 each corporation law of the State, with full forms and instructions for inare preferred claims. Assignee must file list of creditors at the end of corporating, is sent without expense by the secretary of state. Trenthree months, and make dividends at the next term of court. Creditor ton, N. J.. upon application. A copy of the corporation act may be
not presenting claim does not share in the dividend, but retains his had free upon application to New Jersey Registration and Trust
right of action against the debtor. Corporation may make assign- Company, 525 Main Street, East Orange, N. J.
ment for the benefit of its creditors.
Courts. Terms and Jurisdiction . Circuit courts and courts of
Attachment. A creditor may attach the property of a non- common pleas, holding three terms a year in each county, have jurisresident or absconding debtor by making oath to the fact, and to the diction in all civil cases, but to carry costs must recover at least $ 100,
amount of his claim, before any officer authorized to administer oaths except that the court of common pleas has no jurisdiction where title
or affirmations. Attachments are for the benefit of all applying to lands comes into question. The supreme court, holding three
creditors, but the plaintiff or plaintiffs are to be first paid the amounts terms a year at Trenton , has also original jurisdiction in all cases, but
recover $200 to carry costs . Court of chancery has exclusive
due him or them before division with other creditors. Debts not due must
may be proved under any attachment issued, and receive their pro equity jurisdiction, and sitt at Trenton three times a year. District
rata dividend . No attachment can issue against the members of a court jurisdiction, co-extensive with county, in amounts $500 or
co-partnership, where one of them resides in the State, nor against under: justices' court jurisdiction co-extensive with county, in amount

།

BANKING AND COMMERCIAL LAWS- NEW MEXICO

1431

$200 or less. In cities where district courts are established and deor to a father, mother, husband, wife, child or children, or lineal
descendent born in lawful wedlock, brother or sister, or the wife or
fendant or justice of the peace reside within the limits of said city
the justices' court has no civil jurisdiction whatever. (Sce district widow of a son, or the husband of a daughter, is exempt. All taxes
no
has
appeals
and
of
errors
court
The
,
P.
L.
1898.)
court revision
imposed by the act are due and payable upon the death of the person
original jurisdiction, but hears appeals from court of chancery, and from whom the property passes or is transferred . If paid within one
court, and writs of error from supreme court and circuit year a discount of 5 per centum is allowed , and if not paid within one
pre-rogative
courts.
year interest at the rate of 10 per centum per annum is added . (See
P. L. 1909, Chapter 228.)
. Abolished since July 4, 1893 , unless stipulated
of
Grace
Days
Interest. Legal interest on debts and judgments, 6 per cent.
to the contrary .
is punishable by forfeiture of all interest and costs. Interest
Usury
Depositions of material witness residing in the State, who is
item from its date, as at common
account accrues on each
on an opencorporation
ancient, or very infirm, sick, about to go out of the State, or absent law.
can make defense of usury.
No
from the State, may be taken de bene esse before a judge of the supreme court. judge of the court of common pleas, supreme court
Judgments become a lien on lands from time of actual entry, and
commissioner, or master in chancery, on notice to adverse party. Of so remain for twenty years. Where there are several judgments, that
material witness residing out of the State by virtue of a commission
under which the first levy is made takes priority. Judgments recovered
issued out of the court before which the action is pending, either on
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
interrogatories or orally upon notice. The commissioner must first
take and sign an oath, "faithfully, fairly, and impartially to execute
may be docketed in common pleas, so as to be a lien upon lands.
Decrees in chancery may be enrolled in supreme court; when so
the said commission" before any officer authorized to take an oath.
Such depositions may also be taken before a judge of the supreme
recorded, have effect of judgment recovered therein .
court, or district court, or court of common pleas, commissioner of
Limitations of Suits. Contracts not under seal, six years; real
deeds appointed by the governor of the State of New Jersey resident
actions and judgments, twenty years ; notes secured by mortgage and
where the witness is, on notice of one day, exclusive of Sunday, for
under seal, sixteen years. Revivor: Part payment or new
contracts
every fifty miles of travel and not less than ten days in all. If the
promise or acknowledgment in writing.
witness resides on the Pacific coast, the court fixes the length of
Married
Women hold and control their property, real and pernotice. If in a foreign state or kingdom, not less than forty days'
sonal, precisely as if unmarried. But a married woman cannot benotice must be given. (See Jeffery's Law Precedents, p. 260, et seq..
accommodation
come
an
indorser, guarantor, or surety , except under
and Dickinson's Chancery Precedents, p. 217, et seq., for forms and
certain conditions. (See P. L. 1895. p . 821.) She cannot convey or
instructions
.)
incumber
real
estate
without
her husband, except she is living in a
1.
and
Descent
Distribution. Descent :
To children and
state of separation from her husband , and there has been no issue of
grandchildren, and so on , that is, lineally, ad infinitum. 2. In demarriage, or her husband is unable to join through lunacy or
fault of class 1 , to brothers and sisters of the whole blood, and their ' such
other mental incapacity, or in case an assent to the same has been
issue. 3. In default of classes 1 and 2, to the father, unless the
signed and acknowledged by the husband. A married woman may
inheritance came from the mother by descent, devise, or gift. 4. In
make a will of her separate estate as if she were sole, but cannot defeat
default of classes 1 , 2 , and 3, to the mother for life. 5. In default
husband's interest in her real estate, although she can make
her
of the former classes, to the brothers and sisters of the half blood and
absolute disposition of her own private personal property without
children of such, provided the inheritance came from the common
regard
to her husband. A married woman who is an executrix or
blood or by purchase. 6. In default of all of these to the persons
trustee may convey lands of testator without husband joining. A
of equal degrees of consanguinity. 7. In default of all above classes married
to the husband or wife, if any, in fee simple. Escheat to State after Dower.) woman may execute a valid conveyance of life estate. (See
all above claims are exhausted . Distribution : 1. One-third to
Mortgages. Unless to secure purchase money, wife must join. A
widow, residue to children and legal representatives of such children .
Advancements and settlements are to be deducted from share of child
married woman cannot execute any mortgage without husband.
Foreclosure is by action in equity. Chattel mortgages are absolutely
so advanced or receiving settlement. 2. If no children or legal reprevoid as against creditors and subsequent bona fide purchasers and
sentative, one-half to widow, residue to next of kin. 3. If no widow,
mortgagees, unless the mortgage is acknowledged or proved according
to the children equally, and if no children then to next of kin and
legal representatives . 4. If father be dead and child die without
to law and recorded , or unless the mortgage is accompanied by immediwidow or children in lifetime of mother, every brother and sister and
ate delivery
and followed by continued change of possession of mortgaged
property.
Foreclosure of chattel mortgages is usually effected
representatives shall have equal share with mother. 5. If mother
of illegitimate child or children die without leaving husband or lawful
by seizure and sale, although may be foreclosed in equity . Chattel
issue then illegitimate child shall take her estate. 6. The estate
mortgages must have an affidavit annexed , setting out the interest of
the mortgagee, consideration of the mortgage, and the amount due
of illegitimate child dying without widow or lawful issue shall go to
mother. 7. Where person has died intestate, leaving widow but no
and to grow due thereon said affidavit to be made by the holder, or
his agent or attorney. Chattel mortgages upon household furniture
kindred or relatives capable of taking estate, and the estate be undistributed. it is now given in full to widow of such intestate. 8. in the use of the family, unless given for the purchase thereof, must be
The estate of person dying without leaving widow or kindred or
executed and acknowledged by both husband and wife.
relatives, after one year shall be put out at interest and income paid
Negotiable Instruments. Regulated by an act entitled, "A
annually
treasurer
General Act relating to negotiable instruments (being an act to
claimstoare
barred. of city or township . Seven years after decease
all
establish a law uniform with the laws of other states on that subDivorce. Court of chancery has jurisdiction . Causes : Former ject) ," was this year adopted . The act is quite identical with that
passed in New York, Massachusetts, Connecticut, Rhode Island ,
husband or wife living . Parties within the degrees prohibited by law.
Pennsylvania, Maryland, Virginia, North Carolina, Tennessee, Florida,
Willful, continued , and obstinate desertion
Impotenc
e . Adultery.
for two years
. From bed and board for extreme
Wisconsin, North Dakota, Colorado, Utah, Oregon, and Washington.
cruelty . For first
three causes, decree of nullity . Decree of nullity will be made in cerPowers of Attorney for sale of land in which married woman
cases if wife under sixteen or husband under eighteen at time joins, must contain a full and particular description of the lands, tenetainmarriage
of
.
ments,
or hereditaments authorized to be conveyed .
Dower. Widow entitled to one-third for life of all the lands of
Probate Law. (See Administration of Estates and Wills.)
which her husband was seized during coverture , for which she has
requires bond from party issuing the writ. Officer holds
executed and forReplevin
deed , properly
or release
relinqui
no dged
given
shment
acknowle
twenty-four hours, during which defendant may give bond and
Distribu
and by
Descent
. (See
tion .)
retain the goods, when the case proceeds. In the same suit damages
Executions issue immediately upon a rendition of judgment, and may be recovered . If no bond is given, goods are delivered to plainare returnable either in term or vacation . An execution and levy
tiff.
upon a junior judgment takes priority over a former judgment under
Suits are commenced by writs of summons, caplas, warrant, or atwhich no execution and levy has been made. The proceeds are applied
tachment. Service by publication may be made in equity only, and
to the payment of the execution upon which the sale is had . There
in common law courts, in case of a foreign corporation, if service cannot
iscounortsstay
of
execution,
except
on
those
which
are
issued
out
of
justice
s
. In these courts thirty days are allowed on sums up to $15;
be made on officers or agents, directors, clerks or engineers.
three months up to $60, and six months on all sums over $60, and this
Taxes are and remain paramount liens, except as to taxes subsejudgment
confession
defendant
only case freehold
of
by
and
giving good and
quently assessed, from and after December 20th following assessment .
sufficient
security.
There is no redemption after sale in any
due and in arrear September 1st next after assessment may be
Taxes
case. Where an execution has been returned unsatisfied , the court
collected by sale of land. Right of redemption extends two years
out of which it was issued may, on application of the judgment credi- from sale.
tor, make an order compelling the debtor to appear before the officer
Transfer of Corporation Stocks. Shares of stock are personal
named and make discovery on oath concerning his property. The
transferable on books, but cannot be voted on if transferred
Judgment creditor shall present to the court a petition verified by property,
twenty days before election . Subject to attachment and levy of
oath, in which he shall state the amount due on said execution, the
execution
return made, and his bellef that the debtor has property in his own
Wills. There are four requisites to make a valid will in this State .
right over and above that which is reserved by law. Court may make
They are: 1. That it be in writing. 2. That it be signed by the
order forbidding debtor from receiving or transferring property where
testator. 3. That such signature shall be made by the testator, or
It is shown he has property or rights in action. Order may also be
the making thereof acknowledged by him in the presence of two witmade against third person owing debtor or having his property in
control, custody, or possession . Arrest on a capias can only be had
nesses, 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
attempted
In
case
of
fraud
or
removal
or
disposal
of
property
with
Intent to defraud creditors . Creditor may proceed upon unsatisfied
his last will in the presence of these witnesses. Sealing is customary.
judgment at law by bill in chancery: court has power to compel discovery,
debtor, and to preserve and make disposition of
propertyexamine
.
SYNOPSIS OF
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
THE LAWS OF NEW MEXICO
intended for a homestead, or else that notice to such effect is filed in
the county clerk's office. Personal property to the amount of $200,
RELATING TO
besides wearing apparel, owned by a resident head of a family, appraised by three persons appointed by the sheriff; and the widow of
BANKING
AND
COMMERCIAL USAGES
exemption
family
a deceased
mayofclaim
the samedebtor
$200exas
creditorsperson
againstofthe
. Family
absconding
may of
claim
emption of $200 as above.
Prepared and Revised by FELIX H. LESTER, ESQ., Attorney at Law,
Frauds. (See Contracts .)
Albuquerque. (See Card in Attorneys' List .)
Garnishment . (See Attachment .)
Acknowledgments. (See Conveyances. )
Holidays. Legal holidays are : January 1st , commonly called
Actions. The practice in this Territory is the code modified by
New Year's Day: February 12th, called Lincoln's Birthday: February rules
of court. All civil actions in district courts are brought as
22d, known as Washington's Birthday: Good Friday; May 30th,
known as Decoration Day: July 4th, called Independence day; first follows: All transitory actions shall be brought in the county where
Monday of September, known as Labor Day: October 12th, known as either the plaintiff, or defendant, or some one of them, resides, or in
"Columbus Day " December 25th, known as Christmas Day: Thanks- the county where the contract sued on was made, or is to be pergiving Day, and any general election day. If any of these days formed, or where the cause of action originated, or indebtedness sued
on was incurred : or in any county in which the defendant, or either
happen on Sunday the holiday is kept Monday. Every Saturday
of them, may be found, in the judicial district where the defendant
from 12 o'clock at noon to 12 o'clock at midnight is a half- holiday.
resides . When the defendant has rendered himself liable to a civil
Husband and Wife. (See Married Women .)
action by any criminal act, suit may be instituted against such
Inheritance Taxes . Property of the value of $500 or over is defendant in the county in which the offense was committed, or in
taxed
at the rate of five per centum . Property passing to churches,
which the defendant may be found. or in the county where the
plaintiff resides. When suit is brought for the recovery of personal
hospitals and orphan asylums, public libraries, bible and tract societies,
religious, benevolent and charitable institutions and organizations,
property, other than money, it may be brought as herein stated,

1432

BANKING AND COMMERCIAL LAWS - NEW MEXICO

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 situated . Suits may be brought against
transient persons or non-residents in any county of this Territory.
Administration of Estates. Letters of administration are
granted in the county in which the mansion, house, or place of abode
of the deceased is situated, or in the county in which lands of the
decedent 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 surviving; secondly, if there be no husband or wife surviving,
to those who are entitled to distribution of the estate, or one or more
of them, as the probate judge shall believe will best manage the
estate: thirdly, to any creditor thirty days after the death; fourthly,
probate judge may select a suitable person . The probate court has
exclusive jurisdiction, and from all its acts an appeal lies to the district court. (See Claims Against Estates.)
Affidavits. Amdavits to be used in court may be taken before
any person authorized to take acknowledgments.
Aliens. By statute of the Territory, foreigners have the same
right to own and dispose of real estate that citizens of this country
enjoy, and property descends to their heirs and is controlled
by their
executors and administrators in precisely the same way. (See Act
of Congress , July 20, 1886.)
Arbitration. All litigants shall have the right to terminate their
suits, in whatever condition they may be, by means of arbitrators .
The arbitrators shall enter into an agreement (the form of which is
provided by statute) to submit their differences to arbitration, and
the arbitrators shall receive proofs and hear arguments of counsel,
and render sentence as the majority of the arbitrators may decide ,
and any of the courts will enforce the decision of the arbitrators by
issuing execution thereon.
Assignments. Under chapter 67 , laws of 1889 , Insolvent debtors
may make assignments for the benefit of their creditors . No preferences are allowed, but the assignment inures to the benefit of creditors
generally, pro rata. The court may upon proper application compe!
the assignee to surrender the property to a receiver to be appointed
by the court. The claims of creditors to be verified by the oath of
the creditor, his agent. or attorney. Assignee is required to settle
up the estate within twelve months.
Attachment. Creditors whose demands amount to $100 or more
may sue their debtors in the district court, by attachment in the
following cases, to-wit: 1. When the debtor is not a resident of
nor resides in the Territory. 2. When the debtor has concealed
himself or absconded , or absented himself from his usual place of
abode In this Territory, so that the ordinary process of law can not
be passed upon him . 3. When the debtor is about to move his
property or effects out of this Territory, or has fraudulently concealed
or disposed of his property or effects, so as to defraud , hinder, or delay
his creditors. 4. When the debtor is about to fraudulently convey
or assign, conceal, or dispose of his property or effects, so as to hinder,
delay or defraud his creditors. 5. When the debt was contracted
out of this Territory, and the debtor has absconded or secretly removed
his property or effects into the Territory with intent to hinder, delay
or defraud his creditors. 6. When defendant is a corporation whose
principal office or place of business is out of this Territory, unless
such corporation shall have a designated agent in the Territory, upon
whom service of process may be made in suits against the corporation.
7. When the defendant fraudulently contracted the debt, or incurred
the obligation, respecting which the suit is brought, orobtained credit
from the plaintiff by false pretenses. An attachment may issue upon a
demand not yet due, in any case where an attachment is authorized,
in the same manner as upon demands already due. The attaching
creditor must file with the clerk of the court a bond with two or more
sureties in double the amount of the claim, and an affidavit sworn to
by plaintiff or some person for him, setting out the amount of the
claim , that it is due after allowing all just creditors and offsets, and
on what account: and that afflant has good reason to believe, and
does belleve, in one or more of the causes for attachment hereinbefore
set forth. Any person having property or effects of defendant in his
hands may be garnisheed . The attachment may be dissolved by
denying and successfully contesting the truth of the ground of attachment specified in the affidavit, and then the suit proceeds as an
ordinary action.
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 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 newspaper of the county . The officers and
bank formed under the provisions of the act
stockholders of every
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, except that when
any stockholder shall sell and transfer his stock, such liability shall
cease at the expiration of one year from the date of such transfer.
It is also provided, however, that the stockholders, collectively of
any bank, shall at no time be liable to such bank, either as principal
debtors, or sureties, or both, to an amount greater than two-nfths
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 merchants . 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 sult in his own name. On a joint and several note.
any one of the makers may be sued. Indorsers are subject to the
same liabilities as at common law. Interest is limited by statute to
12 per cent per annum . Days of grace are allowed. Commercial
paper falling due on Sunday or any legal holiday is, under statute.
payable on the next business day thereafter.
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 possesslon . Every mortgage so filed for record is vold 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 fling, and each year thereafter, said mortgage be continued by affidavit of mortgagee. bis 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 in writing by the executor or
administrator shall be considered as denied. Claimants may appeal
from the probate court to the district court, which appeal must be
taken within 90 days from the decision of the probate court, and
within eighteen months after the appointment of the executor or
administrator. Claims have preference as follows: 1. Expenses of
administration . 2. Expenses of funeral and last sickness . 3 .
Allowance for maintenance of widow and children . 4. Claims prethe express provision of the United States or territorial
ferred
laws. by
5. Taxes. 6. All other debts. 7. Legacies. A claim
against an estate on account of matters occurring during the lifetime
of the deceased cannot be allowed on the uncorroborated evidence
of the claimant.
Conveyances. All conveyances of real estate shall be subscribed
by the person transferring his title or interest in said real estate, or
by his legal agent or attorney. Every instrument in writing by which
real estate is transferred or affected , in law or equity, shall be acknowledged and certified to in the manner hereinafter prescribed . The
acknowledgment of all conveyances or writing affecting any real
estate, in law or equity, shall be taken before any of the following
named officers : If the acknowledgment is made within the Territory
it shall be made before any (1) clerk of the district court, (2) judge of
probate court using probate seal, (3) notary public , (4) justice of the
peace. If taken without the Territory and within the United States.
the acknowledgment to be taken ( 1) before 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. If acknowledged beyond the limit of the United States, it shall be done before
any (1) minister, commissioner, or chargé d'affaires of the United
States resident and accredited in the country where the acknowledgment is made. (2) consul general, consul , vice- consul, deputy consul.
consular agent of the United States, resident in the country where
the acknowledgment is made, having a seal, (3) a notary public having a seal. Husband or wife may convey their separate estate without consent of the other and husband has sole management and
disposal of community property. No seal or scroll necessary to the
validity of conveyances except by corporations.
Corporations. By act of congress, approved March 2, 1867 ,
legislative assemblies of the several territories were prohibited from
granting charters of especial privileges, but were authorized to pass
general incorporation acts to permit persons to associate themselves
together as bodies corporate for certain purposes named. Any three
or more persons may form a corporation for mining, manufacturing.
or other industrial pursuits, or the construction and operation of railroads, wagon roads, irrigating ditches, and the colonization and improvement of lands in connection therewith; or for colleges, seminaries .
churches, libraries, or any benevolent, charitable or scientific association . To do so they must make, sign, and acknowledge - before some
officer competent to take the acknowledgment of deeds--a statement
in writing (for the filing of which the Territory is entitled to graduated fees) , setting forth the full names of such persons; the corporate
name of the company; the objects for which it is formed ; the amount
of its capital stock; the time of its existence, not exceeding fifty years;
the number of shares into which the capital stock is divided : the number of directors and their names, who shall manage the affairs of the
company for the first three months, and the name of the city, or
town and county in which the principal place of business of the company is located : the amount of the capital stock with which it will
commence business, which shall not be less than $2,000 , and if there
be more than one class of stock created by the certificate of incorporation, a description of the different classes, with the terms on which the
respective classes of stock are created ; the names and post-office
addresses of the incorporators and the number of shares subscribed
by each, and shall also give the name of the agent in charge of the
principal office upon whom process can be served . There shall be
at least three directors in each company, and a majority of them
citizens of the United States, and at least one-third residents of the
Territory . And after the expiration of the term of those first selected
(three months) , they shall be selected annually by the stockholders
from among their number. A majority of the whole number of directors form a quorum for the transaction of the business . When the
certificate has been filed the life of the corporation begins, with all
the usual liabilities and powers. The stock of the corporation is personal estate . There is no personal liabilities upon stockholders if
stock is paid up, except where debts are incurred in excess of the capital stock. The stock of a stockholder may be taken on attachment
or execution. The capital stock may be increased or diminished by
a vote of two-thirds of the shares of stock at a meeting of the stockholders, called for that purpose, upon four weeks' notice, signed by
a majority of the directors . Foreign corporations, or those organized
under the laws of other states and territories, may do business in
this Territory by filing with the secretary and probate clerk of county
in which the principal place of its business shall be a copy of the
laws under which they are chartered, and a certified copy of their
charter, and also a certificate signed by the president and secretary
of such company, duly acknowledged, designating the principal place
where the business of said company shall be carried on, and an
authorized agent or agents residing at said principal place of business upon whom process may be served . Railroad corporations come
under a separate head with peculiar privileges and restrictions.
Costs. Security for costs or a deposit of money in lieu thereof is
required of plaintiffs, in the discretion of the court.
Courts. District courts hold two terms a year in all the counties,
and have unlimited common law and chancery jurisdiction . There
are probate courts with the usual powers, holding six terms a year.
District courts are at all times in session for the transaction of all
business except jury trials.
Days of Grace. (See Bills and Notes.)
Depositions. Depositions of witnesses to be used in any court in
this Territory in all civil cases.. and proceedings may be taken in the
following cases: 1. When by reason of age, infirmity, sickness or
official duty it is probable that the witness will be unable to attend
the court. 2. When the witness resides without the Territory or
the county in which the suit is pending. 3. When the witness has
left or is about to leave the Territory or county in which the suit
is pending, and will probably not be present at the trial. Depositions
may be taken on interrogatories and cross -interrogatories attached
to a commission to be issued by the clerk of the court or justice of
the peace, and may be taken within the Territory by a district judge.
clerk of district court, clerk of probate court or any notary public of
the county where taken . They may be taken without the Territory
by any clerk of a court of record having a seal, by a notary public
or a commissioner of deeds duly appointed under the laws of this
Territory, and residing within the state or territory within which the
witness is alleged to be or resides. The officer to whom the commission is addressed is authorized to issue subpoenas for witnesses, and
upon their appearance, and take and reduce to writing their answers
to the interrogatories , which shall be signed to and sworn by the
witnesses. The officer shall certify that the answers were signed and
sworn to by the witness before him and shall seal them up in an
envelope together with the commission and Interrogatories, and shall
write his name across the seal, and shall direct the package to the
clerk of the court or justice of the peace issuing the commission. If

BANKING AND COMMERCIAL LAWS- NEW MEXICO
sent by mail the postmaster malling the same shall indorse thereon
that he received them from the officer taking the same, and sign his
name. In every case the officer taking the deposition shall certify
that he knows the witness to be the person such witness purports to
be, but if such witness is not personally known to the officer he shall
then require the witness to be identified by at least two responsible
persons well known to the officer, and he shall certify to the fact of
identification of the witness.
Divorce. The grounds for divorce are : Adultery, crue or
inhuman treatment, abandonment , habitual drunkenness , and neglect
on the part of the husband to support the wife, impotency, pregnancy, conviction of a felony. Complainants must prove residence
in the Territory for one year before beginning suit. The district
court has exclusive jurisdiction, and at least one corroborating witness is required .
Dower. All property owned by any woman at the time of her
marriage, continues to be her separate property, and she may receive
and hold property during coverture free from liabilities on account
of her husband's debt, except for necessaries of life. There is no
dower in the Territory, but a married woman is entitled to one-half
of all the property acquired by the husband and wife during coverture ,
urst, however, deducting all indebtedness .
Executions. Executions may issue at any time within seven years,
provided first execution is taken out within five years after rendition
of judgment, and to any county in the Territory . From district
courts are returnable in sixty days from delivery to sheriff, and from
Justices' courts within thirty days from date of issue. No stay of
execution except by appeal. A writ of error will stay execution of a
judgment in district court, if such writ is applied for within three
months from date of rendition of judgment, and bond is given for
double the amount of such judgment. The supreme court may
assess 10 per cent damages where appeal is taken without reasonable
cause. Real estate sold under execution, and subject to liens and
incumbrances , may be redeemed within one year. Sales under execu⚫tion must be advertised four weeks prior to day of sale, in some newspaper.
Exemptions. Real estate to the value of $ 1,000 shall be exempt
from execution in favor of heads of families actually residing on the
same, provided the exemption be claimed . But if in the opinion of
the creditors the premises claimed as exempt are worth more than
$ 1.000, it shall be lawful for the officer to advertise and sell the
premises, and out of the proceeds of such sale pay to the execution
debtor $ 1,000 , and apply the balance to payment of execution, provided that no sale can be made unless more than $ 1,000 be bid for
the premises. Also the clothing, beds, and bed-clothing necessary
for the use of the family: and firewood sufficient for sixty days, when
actually provided and intended therefor. All Bibles, hymn-books,
testaments, school books used by the family, and family and religious
pictures. Provisions actually provided, to the amount of $50, and
kitchen furniture and household furniture not exceeding $200 in value
both to be selected by the debtor. Also all tools and implements
belonging to the debtor that may be necessary to enable him to carry
on his trade or business, whether agricultural or mechanical, to be
selected by him , and not to exceed $ 150 in value. Real estate when
sold under execution must be first appraised by two freeholders of
the vicinity, and must bring two-thirds of the appraised value.
Unmarried men have no exemptions. Any resident of the Territory
owning no homestead may select other property, not exceeding $ 500
in value in lleu thereof.
Foreign Corporations. (See Corporations.)
Foreign Judgments. Action founded upon any judgment of any
court of record of any other territory or state of the United States,
or of the federal courts may be brought within seven years from and
afterthe rendition of such judgments, and not afterwards.
Fraud. Fraudulent conveyances, or conveyances made with the
design to prefer one or more creditors in preference to others, and,
when the debtor is insolvent, may be set aside upon application by
a bill in equity. (See Assignments .)
Garnishment. All persons and corporations are subject to
garnishment for moneys of a debtor in their hands, and a failure of
the garnishee to appear and answer, subjects the garnishee to a proceeding for contempt. (See Attachments.)
Holidays. Sundays. Christmas, New Years, Fourth of July, and
such other days as may be designated by the government as holidays.
Homesteads. (See Exemptions .)
Husband and Wife. (See Divorce and Dower.)
Insolvent Laws. (See Assignments .)
Interest and Usury. Six per cent interest is the legal rate of
interest in absence of contract, but parties may agree in writing for
any rate of interest not exceeding 12 per cent. Open accounts bear
interest
cent frombear
at 6. per
six months
the date
of last sued
in
Item on,
the account
Judgments
the sameafter
interest
as contract
and in the absence of any specified rate, 6 per cent.
Judgments. Money judgments of the district court for the
counties of Santa Fe, San Miguel, Bernalillo, Socorro, and Dona Ana,
are liens on real estate of the judgment debtor from the date of
rendition, if within sixty days after rendition of such judgment a
transcript of the docket of such judgment be filed in the office of the
recorder of the county in which such real estate is situated. A like
judgment of the district courts of all other counties of the Territory
and of the supreme court of New Mexico becomes a lien upon the
real estate of the judgment debtor from the date of the filing of a
transcript of the docket of such judgment in the office of the recorder
of the county in which the real estate is situated.
Jurisdiction. Justice courts have jurisdiction to the amount of
$100 . District courts have unlimited original jurisdiction. Probate
hold six terms annually, and have ordinary probate jurisdiccourts
tion. District
courts in certain counties also sit for the trial and
hearing of causes arising under the constitution and laws of the
District courts and probate courts are courts of
States.
United
record .
Liens. Every person performing labor upon, or furnishing materials to be used in the construction , alteration , or repair of buildings ,
etc., has a lien upon the same for the work done, or for the materials
furnished, but every original contractor claiming the benefit of the
llen law must, within ninety days after the completion of any building, etc., file with the county recorder a claim showing the amount
of his demand remaining due him, name of the person by whom he
was employed , and a general statement of his contract : also a declaim
scription of the property to be charged with the lien, which
must be verified by the oath of the party or his agent. Sub-contractors have sixty days in which to file liens. Landlords , innkeepers ,
and common carriers have the usual lien on property and baggage
of tenants, guests, and shippers. (See Judgments .)
Limitations. Ten years' adverse possession of land under color
of title, having paid taxes on the same for such period, bars all actions.
Infants, femme covert, persons of unsound mind, imprisoned, or
beyond the limits of the United States, excepted , and have one year
after removal of disability in which to bring action. All other actions
must be brought as follows: Upon judgments of courts of record ,
within seven years; on bonds, promissory notes, bills of exchange,
91

1433

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 fraud, within four years, against sureties on official
bonds. and against sheriffs and public officers, within two years.
Actions of replevin must be brought within one year after right of
action accrued.
Married Women. (See Dower.) May sue and be used as femme
sole.
Mechanics' Liens. (Sce Liens . )
Mortgages of Personal Property. (See Real Estate and Chattel
Mortgages .)
Mortgages of Real Property. There is no statute relating to
mortgages on real estate, except that they must be 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
vold as against the creditors of the person making the same, or against
subsequent purchasers or mortgagees in good faith, after the expiration of one year after the filing thereof; unless within thirty days
such filing.
next preceding the expiration of the term of one year from
and each year thereafter the mortgagee, his agent, his attorney, shall
in the
mortgagee
of
the
interest
the
exhibiting
an
affidavit
make
property at the time last aforesaid, claimed by virtue of said mortgage, and if said mortgage is to secure the payment of money, the
amount yet due and unpaid ; such affidavit shall be attached to and
filed with the instrument or copy on file, to which it related . In the
absence of a stipulation to the contrary, the mortgagor of personal
property has the right to the possession thereof. After condition
the amount of the
broken the mortgagee or his assignee may, where
debt does not exceed $300, proceed to sell the mortgaged property ,
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 be any surplus remaining, the same
shall 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, Executions, and Administration of Estates.)
Protest . Any notary public may make protest of bills of exchange .
acceptances, promissory notes, etc., for non-payment. The certificate
of a notary, under his official seal, as to presentment, demand, nonpayment, or non-accepta
and notices to parties, shall be prima
facie evidence of the factsnce,
certified to. Fees for protest and certifica
te
thereof $2.00 ; 25 cents additional for each notice.
Conveyances.)
Records. (See
Redemption. Real estate sold under execution may be redeemed
by the execution debtor within one year, by paying to the purchaser
the purchase money with interest thereon at 12 per cent. Real estate
sold for taxes may be redeemed within three years, but the debtor
shall pay interest at 1 1-2 per cent per month on the purchase money .
The purchaser under execution is entitled to the growing crops, and
the rents and profits. when property is sold under a foreclosure
proceeding the mortgagor has nine months within which to redeem
same by paying the amount of the debt and costs, with 12 per cent
interest.
Replevin . Any person entitled to the immediate possession of
personal 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, thatdefendant,
the same was wrongfully
taken or is wrongfully
detained by the
and that the plaintiff's right of action
accrued within one year. Before the writ is served, plaintiff must
give bond to the officer conditioned to hold him harmless, make
return of the property, if a return be adjudged and pay all costs that
may be adjudged against him, the affidavit to be made and bond
executed by the plaintiff, or some responsible person for him . If
the plaintiff fail in his action, or to prosecute the same, defendant is
entitled to a return of the property, or its value at his option, and to
double damages for the detention of the property. No cross replevin
allowed .
Taxation. Taxes have the force and effect of a judgment against
the person assessed and constitute a lien upon real and personal property. Taxes become delinquent, one-half the first day of December
of the year for which the same was levied, and the other half the first
of June following, and unless the same is paid on the second days of
December and July respectively, one per cent penalty is added ; and
unless said taxes are paid on or before the first day of the following
month four per cent additional is added . After sale certificates draw
interest at the rate of 1 1-2 per cent per month. Real estate sold for
taxes may be redeemed within three years. Exemption to amount
of $200 allowed to head of family residing in Territory, Irrigation,
reservoir, and railroad companies exempt under certain conditions
for a term of years.
Wills. Any person of the age of twenty-one years or upwards,
and in sound mind, may dispose by will of all his property, except
shall be
what is sumelent to pay his debts . Two or more witnesses
sufficient. The witnesses to a written will must be present, see the
testator sign the will, or some one sign it for him at his request as
and for his last will and testament, and must sign as witnesses at his
request, in his presence and in the presence of each other. Any will
or
executed in any foreign jurisdiction sufficient to convey the title
real estate in such jurisdiction, shall be valid in this Territory to the
same extent as in the jurisdiction where made. All written wills
are irrevocable, except by specially mentioning It in a subsequent
will and declaring that he thereby revokes the same or by a subsequent
valid will disposing of the same property. The probate judges have
power to qualify and approve wills after hearing the evidence of the
with the
witnesses who attest the will, and any other facts connected
execution of it. If the probate judge finds everything to be legal and
proper he approves the will, but if not, then he returns it to the party
applying for Its approval, with his reasons for falling to approve the
same. The person to whom it is returned may present the same to
the district court at the next regular term held in the county, for
its approval or disapproval which is final.

1434

BANKING AND COMMERCIAL LAWS - NEW YORK
SYNOPSIS OF
THE LAWS OF NEW YORK
RELATING 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 public, or the mayor, a
recorder of a city, a justice of the peace, surrogate, special surrogate
special county judge, or commissioner of deeds. (No special form.
separate and apart from her husband, etc., now required for married
women.) If made without the State, they may be taken 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 by a New York commissioner, or any
officer of such state or territory authorized by its laws to take acknowledgments, or proofs or 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 acknowledgments and proofs in foreign countries; also Cuba, Porto Rico, and
Philippines.
Administration of Estates. The administration of estates is
committed to surrogate's courts . In cases of intestacy , letters of
administration are to be granted to the relatives
of the deceased entitled to succeed to the personal property of 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 executor, 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 competent, is entitled to preference.
If no creditor applies, the letters must be granted to any other person
or persons legally competent; county treasurers 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 certificates in such county.
Arbitration may be resorted to, upon disputed questions, the
practice being regulated by the code of civil procedure.
Assignments and Insolvency. Statutory provision exists, regulating the making of general assignments in trust, for the benefit of
creditors : Preferences are allowed for the wages or salaries of employes, and to the amount of one-third in value of the assigned estate
after deducting such wages or salaries and the costs and expenses of
executing 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 be 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 indebtedness of the assignor.
Attachments may issue in actions for damages for breach of contract,
wrongful
conversion of
ofnegligence
personal property,
or Injury
to person
or property
in consequence
or fraud, where
the defendant
is either a foreign corporation, or non-resident, or has left the State,
or conceals himself to avoid service, or has removed from the State,
or sold, assigned , 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 or an extension of credit, a false statement was
made in writing, under the hand and signature of the defendant, or
a duly authorized agent , made with his knowledge and acquiescence,
as to his financial responsibility or standing, or where the defendant ,
being an adult, has been continuously without the United States for
more than six months and has not made a designation of a person
upon whom to serve a summons in his behalf.
Banks. The constitution prohibits the legislature from passing
any act granting any special charter for banking purposes; but corporations or associations may be formed for such purposes under
general laws.
In a village whose population does not exceed 2,000, a capital of
$25,000 is required ; where the population exceeds 2,000, but does
not exceed 30,000 , $ 50,000 is the capital required, and not less than
$ 100,000 elsewhere.
Provision is made for circulation and a deposit for security therefor.
The state constitution provides that stockholders of all banking corporations shall be liable to the amount of their respective shares
for all debts and liabilities ; and also that bill holders, in case of insolvency, shall be entitled to a preference in payment over all other credItors of the bank. General laws have been enacted in accordance
with these constitutional provisions . Quarterly reports are required
to be made to the superintendent as of a date designated by him. He
is also given authority to examine the books of any bank. No foreign
corporation other than a moneyed corporation may do business in
this State with the words, " trust, " "bank,” “banking, " "Insurance ,'
"assurance, " "indemnity," "guarantee,' "guaranty," "savings,
"Investment, " "loan, " "benefit." or any other words or terms indicating, representing or holding out such company to be a moneyed corporation, as a part of its name or corporate title.
The general banking act also provides for the organization and
management of savings banks and trust companies.
Banks of discount and deposit, and trust companies having their
principal place of business in the Borough of Manhattan, New York
City, are required to have at all times on hand at least 25 per cent
of their aggregate amount of deposits; in Brooklyn, 20 per cent; and
such banks and trust companies in all other places in the State 13 per
cent. 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 money's on deposit subject to call in any other bank or trust
company having a capital of at least $200,000 , or a capital of $150,000,
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 valld 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.
A deposit in the names of depositor and another person and made
payable 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 Bills of Exchange .)
Chattel Mortgages. (See Mortgages.)
Consolidated Laws. The Legislature of 1909 passed a large numStatutory Consolidation
ber of complied statutes reported by thedistinguish
them from the
Board, known as " Consolidated Laws,' to
"Revised Laws, " " Revised Statutes, " and " General Laws" heretofore
in force in this State and now repeated .
Conveyances. (See Deeds.)
Corporations. Insurance, banking, railroad, transportation, and
business
State. corporations may be formed under the general laws of the
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 business 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
claiming
such assignee
such foreigndoing
stock corporation person
eitherunder
Foreignorcorporations
business
or under
of them.
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 acquire on sale in foreclosure of a mortgage
held by them or upon any judgment or decree for debts due them, 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 for not exceeding five years. 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., 363, Jan. 1894.)
Courts. Terms and Jurisdiction. The supreme court has unlimited jurisdiction. There is a county court for each county, having
jurisdiction to the amount of $2,000, in actions where the defendant
is, or if there is more than one, where all of the defendants are, residents of the county. Justices of the peace have jurisdiction in actions
on contract where the sum claimed does not exceed $200, and district
courts of the city of New York, where the sum does not exceed $ 250 ,
and the city court of the city of Albany, where the sum does not exceed
$ 1,000 .
Days of Grace are abolished .
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 be brought, may be taken
where shown that such testimony is material and necessary in the
prosecution or defense of the action; or if the action is pending that
the person to be examined is about to depart from the State, or that
he is so sick or infirm as to afford reasonable ground to believe that he
will not be able to attend the trial. Such deposition, except that of a
party taken at the instance of an adverse party, can only beused upon
proof of the witness' inability to attend the trial. Depositions may
be taken without the State for use within the State. The commission.
in the discretion of the court, may direct the examination upon oral
questions or written interrogatories. Depositions may also be taken
within the State for use without the State in an action or special proceeding pending in a court without the State, either in the United
States or in a foreign country . A person who falls to respond to a
subpoena for such examination is guilty of contempt of court.
Depositions may also be taken for use on a motion in any action or
proceeding.
Dower. (See Married Women.)
Executions will issue at any time within five years from date of
Judgment; after five years, leave must be obtained from the court.
Executions may issue to two or more counties at the same time.
There are no stay laws, unless an appeal is taken, when an undertaking
securing the judgment can be given. On a judgment. In any case,
after execution is returned unsatisfied , defendant and others, including
corporations, may be examined as to the judgment debtor's property
in proceedings supplementary to execution, and required to apply
any not exempt in payment.
Exemptions. Homestead, $ 1,000 (to secure such exemption,
deed, or notice designating that the property is to be used as a home
stead, must be recorded) ; necessary furniture, tools, team, etc. , $ 250,
except where execution is issued on judgment for either work performed in the family as a domestic, or for the purchase price of one or
more articles specially exempt. Earnings or income from trust fund
to the amount of $ 12 or more per week may partially be collected
and applied on judgment by order of the court.
False Pretenses. A purchase of property by means of a false pretense is not criminal, where the false pretense relates to the purchaser's
means or ability to pay, unless the pretense is made in writing, and
signed by the party to be charged. Whenever property is purchased
by aid of a statement relating to the purchaser's means or ability to
pay, made in writing and signed, the purchaser upon failure to pay
must produce within ten days, upon request, his books of account and
permit creditors to examine them, and failure to do so is made presumptive evidence of the falsity of such statement, and the party so making
the statement may be proceeded against criminally.
Foreign Corporations. (See Corporations .)
Garnishment. (See Attachment.)
Holidays. The term holiday includes the following days in each
year: The first day of January, known as New Year's Day: the
twelfth day of February, known as Lincoln's Birthday; the twentysecond day of February, known as Washington's Birthday. the
thirtieth day of May, known as Memorial Day; the fourth day of July,
known as Independence Day; the first Monday of September, known
as Labor Day; the twelfth day of October, known as Columbus Day:
and the twenty-fifth day of December, known as Christmas Day;
and if either of such days is Sunday, the next day thereafter; each
general election day and each day appointed by the president of the
United States or by the governor of this State as a day of general
thanksgiving, general fasting and prayer, or other general religious
observance. The term half-holiday includes the period from noon to
midnight of each Saturday which is not a holiday. Where a contract
by its terms requires the payment of money, or the performance of a
holiday, such payment may be made or condition
condition onon
a public
the next business
performed,
day succeeding such hollday, with
the same force and effect as if made or performed in accordance with
the terms of the contract.
Husband and Wife. (See Married Women .)
Insolvency. (See Assignments and Insolvency. )
Interest. The legal rate of Interest is fixed at 6 per cent. All
notes, bonds, contracts, securities, etc., whereby a greater rate is
reserved, or taken, or agreed for, are absolutely void, and the lender

BANKING AND COMMERCIAL LAWS - NORTH CAROLINA
can recover neither principal nor interest In such cases, but corporations cannot plead usury as a defense. Usury is also punishable as a
misdemeanor by fine or imprisonment, or both. State banks have
been placed on the same footing as national banks as regards usury,
and are thereby exempt from the extreme penalties mentioned above.
On demand loans of $ 5,000 and over, made with warehouse receipts,
bills of lading. certificates of stock, certificates of deposit, bills of
exchange, bonds, or other negotiable Instruments, pledged as collateral,
it is lawful to receive and collect, as compensation for making such
advances, any sum, to be agreed upon in writing by the parties to
the transaction.
Judgments. Judgments docketed in a county clerk's office bind,
and are a charge upon, real property for ten years, which the judgment debtor has or acquires within that time. A judgment is presumed to be paid after the expiration of twenty years from the time
when the party recovering it was first entitled to a mandate to enforce
it. Confession or an offer of judgment can be made in an action.
Married woman may confess judgment.
Limitations of Suits. Contracts, express or implied , except
those under seal, six years : recovery of real estate upon judgments
of courts of record and sealed instruments, twenty years. Revivor:
Part payment or new promise in writing.
Married Women may take, hold , mortgage, and convey real and
personal property. A married woman may contract with her husband, or any other person, to the same extent, with like effect, and in
the same 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 the husband may convey directly to his wife. Widows
have right of dower. Married women may confess judgment .
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
themortgage
amount of the principal debt, payable at the time of recordingofthe
.
Notes and Bills of Exchange. Negotiable instruments are defined by Chapter 38 of the Consolidated Laws. Section 20 provides
as follows: "Section 20. Form of Negotiable Instrument. 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
promise
or orderortoatpay
a sum
certain
money : an3. unconditional
in contain
Must be payable
on demand,
or
a fixed
determinable future time: 4. Must be payable to order, or to bearer;
and 5, where the instrument is addressed to a drawce, 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 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 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 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 day, except that instruments
payable on demand may, at the option of the holder, be presented
for
before .'12 o'clock,
noon, on
daypayment
is not a holiday
(See Holidays
.) Saturday, when that entire
Probate Law. (See Wills .)
Protest. (See Notes and Bills of Exchange .)
Taxes .
be
for taxe
two coun
years deli
s may
s whe
n the
nt ,
Publication Land
week
of sale
is made sold
for twelve
s in
ty papenque
r, and
two years after sale are allowed for redemption , the owner having the
right
to
purc
rede
by
payi
the
mon
and
inter
at
10
hase
em
per
ng
ey
est
cent per annum . A mort
duly ree the instrument is noti
e (wher
corded) has a similar rightgage
of rede
mption and upon filin
ce of
ga
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 females of sixteen years and upward, may bequeath
and upward,
personal
estate
. Wills must be subscribed by the testator in the
presence of two witnesses, each of whom must sign his name at the
must acknowledge
end of the will, at the request of the testator, whowill
of an unmarried
and declare the instrument to be his last will. A
woman is revoked by subsequent marriage. A devise or bequest
establish the will is void.
to a witness whose testimony is necessary topractice
of probating wills
The Code of Civil Procedure regulates the
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
probate, by any person
of the
the validity
supreme court
to determine
within age of minority, of
interested
Persons
will or codicil.
in the
unsound mind, imprisoned , or absent from the State may bring action
two years after disability has been removed.

SYNOPSIS OF
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 any
court of the State upon an account for goods sold and delivered , an
itemized statement of said account, properly verified , shall be received
shall. be deemed prima facle evidence of the correctevidence,
in
account
ness
of said and
All creditors of the maker of a deed of trust
or assignment must file with the clerk of the superior court a state-

1435

ment 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 publication 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 disbursed 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 lles . 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 subscribing witness, before a justice of the supreme
court, a judge of the 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.
Admistration 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 administrator, to be appointed by
the clerk of 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, and the clerk may now
appoint any discreet person.
The following persons are incompetent to qualify as administrators, namely: A minor, an allen 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 of record for 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
agreement 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 particular 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 damages for one or more of the 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 negligence 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 than $25,000 , except at a bank organized in a
city or town not exceeding 1,500 inhabitants can have a capital stock
of not less than $ 5,000 , and 3,000 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 located, in the office of theThe
corporation
commission
bank shall
not comand in the office of the secretary of state.
mence 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
of which 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, discounting 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. It may take
and receive any interest at the legal rate upon its loans. If may purchase, hold and convey real estate, such as may be necessary for the
convenient transaction of its business, which investiment 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 installments of at least 10 per cent, the payment of each
installment to be certifled 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 contracts
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.
negotiable 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 law of this State, and under it. no

1436

BANKING AND COMMERCIAL LAWS - NORTH CAROLINA

demand, protest, or notice of non-payment is required to bind the where the deposition is to be taken; in other cases, where the party
endorser. All bonds, bills, and notes for money with or without seal,
notified resides in the State, one day more for each additional twenty
and expressed or not to be payable to order or for value received ,
miles, except where the deposition is to be taken within ten miles
are negotiable in like manner, as are inland bills of exchange by cusof a railway in running operation in the State, when one day only
tom of merchants of England. January 1st, January 19th, February
shall be given for every 100 miles of the railway to the place where
22d, April 12th, May 10th, May 20th, July 4th, first Monday in Sep- the deposition is to be taken. Where a deposition is to be taken
tember, and the day appointed bythe governor as a thanks giving
beyond the State, ten days' notice of the taking thereof shall be
day, Tuesday after the first Monday in November when a general given, when the party whose deposition is to be taken resides within
ten miles of a railway connecting with a line of railway within twenty
election is held, and December 25th of each and every year, are public
miles of the place where the person notified resides. In other cases,
holidays, and whenever any such holiday shall fall upon Sunday the
where there are no railways running as above specified, twenty days'
Monday following shall be a public holiday, and papers due on such
notice shall be given.
Sundays or Mondays shall be payable on the next succeeding business
day . Instruments falling due on Saturday are to be presented for
Descent and Distribution. When any person shall die seized
payment on the next succeeding business day, except that instruments
of
not having devised the same, it shall descend accordpayable on demand may, at the option of the holder, be presented ingantoinheritance,
the following rules : 1. Real estate lineally descends. 2.
for payment before 12 o'clock on Saturday, when that entire day is
Females
shall
inherit
equally
with males,
and younger
older
not a holiday. The Negotiable Instruments Law, which is the same children. 3. The lineal
descendants
ancestors.
shall represent
theirwith
as the New York statute, except that days of grace are retained, was
4. On the fallure of lineal descendants, and when the inheritance
adopted in 1899 , and is chapter 733 of the laws of 1899. (See Days has been transmitted by descent or derived by gift, devise or settle
of Grace.)
ment from an ancestor, the estate shall descend to the next collateral
Claim and Delivery. In an action to recover the possession of relations of the person last seized , who were of the blood of such
ancestor. 5. On the failure of lineal descendants, and when the
personal property the plaintiff may, at the time of issuing summons,
or at any time before answer, claim the immediate delivery of such inheritance has not been so transmitted or devised, or when the blood
property. He must file an affidavit showing : 1. That the plaint if
of such ancestors is extinct, the estate passes to the next collateral
is the owner of the property claimed (particularly describing
it) or relations of the person last seized . 6. Collateral relations of the
is lawfully entitled to the possession thereof. 2. That the property
half blood shall inherit equally with those of the whole blood . A
is wrongfully detained by the defendant. 3. The alleged cause of person dying, without issue, and leaving no brother or sister, or
the detention thereof. 4. That the property has not been taken
issue of such, the father, if living, shall inherit, and if not, the mother.
for a tax, assessment or fine pursuant to statute, or seized under an 7. When a person shall die leaving no heirs, the widow shall be
execution or attachment against the property of the plainttiff, or, if deemed his heir. 8. Illegitimate children shall inherit from their
so seized, that it is exempt by statute from such seizure. 5. The mother. 9. Illegitimate children may inherit from each other.
actual value of the property. The plaintiff must give an undertaking When an illegitimate child shall die without issue, his mother shall
with sureties in double the value of the property, for its return to the inherit from him. 10. The personal estate of a deceased person, in
defendant, if return thereof be adjudged, and for damages. The
case of intestacy, shall be distributed in the following manner: 1 .
defendant may retain the property to abide the event of the action If not more than two children , one-third to the widow and all the
on giving bond to deliver the property to the plaintiff and pay dam- residue equally among the children and such persons as legally represent such persons who may be dead. 2. If there are more than two
ages, if it be so adjudged .
children, the widow and all the children share alike. 3. If there be
Conditional Sales. All conditional sales of personal property in
no
child nor legal representative of a deceased child , then one-half of
to
writbe
reduced
must
which the title is retained by the bargainor
the
estate to the widow and the residue equally to the next of kin
ing and registered in the same manner, for the same fee, and with the to the
intestate, who are of equal degree, and those who represent
are
they
otherwise
mortgages;
for
chattel
as
is
provided
effect,
same
them
. 4. If there be no widow, then equally among the children
and purchasers, for value, in so far and the
inoperative as against creditors
legal representatives of the deceased children . 5. If there
as they reserve the title in the vendor.
be neither widow nor children nor any legal representatives of the
Corporations. May be found under the general statute, either children, then the next kin of the intestate who are in equal degree
with or without personal liability, by filing and recording a plan of and those who legally represent them. 6. If there be no child or
incorporation or articles of Incorporation, duly signed , in the office legal representative of a deceased child, nor any of the next of kin
of the secretary of state. Thereupon the secretary of State shall
of the intestate, then the widow, if there be one, shall be entitled to
record them and send a copy of the same to the clerk of the superior all the personal estate of said intestate . 7. If an intestate leaves no
court of the county where the office of the corporation is located,
issue,
nor the representative of such, his father shall take in preference
who shall record the same in his office . Charters of corporations to brothers, sisters and mother. In case a married woman , dies
formed under general laws may be amended by proceedings before intestate, her personalty goes to her husband.
the secretary of state with whom the plan of incorporation was filed,
Detinue. (See Claim and Delivery.)
provided there be no change of the business incorporated . They may
Divorce. Marriages may be dissolved and the parties thereto
also be created by a special act of the legislature.
divorced
from the bonds of matrimony, on application of the injured
Domestic corporations may hold, purchase and convey real and
to the superior court, made as by law provided, in the following
personal estate, without limit. In and out of the estate, and may take party
cases
:
First,
if a husband shall commit fornication and adultery ;
such property by devise or bequest . Any corporation created by an second, if the wife
shall commit adultery; third , if either party at the
other state or foreign government may acquire by devise or otherwise,
time of the marriage was and is still naturally impotent; fourth, if
and may hold, mortgage, lease and convey real estate in this State,
the wife at the time of marriage be pregnant, and the husband be
"for the purpose of prosecuting its business or objects, or such real ignorant
of the fact of such pregnancy, and be not the father of the
estate
as debts.
it may" acquire
wayforeign
of mortgage
or otherwise
in the paychild with which the wife was pregnant at the time of the marriage ;
ment of
providedbythe
government
under whose
laws
if there shall have been a separation of husband and wife, and
such corporation was created be not at war with the United States fifth,
they have lived separate and apart for ten successive years, and they
at the time of purchasing such real estate.
shall have resided in this state for that period, and no children shall
Foreign Corporations. Every foreign corporation before being per- have been born of the marriage ; subject to certain provisions.
mitted to do business in the State of North Carolina (railroad, bankDower. The wife is entitled to one-third in value of all the land
ing, insurance, express and telegraph companies excepted) shall file
of which her husband was seized during coverture, including the
in the office of the secretary of state a copy of its charter, or articles
dwelling house in which her husband usually resided . Dower, and
of agreement, attested by its president and secretary, under its corall other rights in a husband's estate, are forfeited by elopement with
porate seal, and a statement attested in like manner of the amount
an adulterer, by abandonment without just cause, and by a divorce
of its capital stock authorized , the amount actually issued, the prina vinculo, or divorce a mensa et thoro granted at the sult of the huscipal office in this State, the name of the agent in charge of such band.
A wife who murders her husband forfeits her right of dower.
office, the character of the business which it transacts and the names
and postoffice addresses of its officers and directors. And such cor- (See Administration of Estates.)
Executions. At any time within three years after docketing of
poration shall pay to the secretary of state, for the use of the State,
ten cents for every $ 1,000 of the total amount of the capital stock judgment, or after the issue of the last execution, judgments may be
enforced by execution without application to court, by the judgment
authorized to be issued by such corporation, but in no case less than
creditor, or in case of his death by his personal representative duly
$10 nor more than $ 100. Every corporation failing to comply with
appointed ; after three years from the docketing or date of issue of
the provisions of this section shall forfeit to the State $ 500, to be
last execution, only by leave of court, upon satisfactory proof that
recovered with costs in an action to be prosecuted by the attorneyjudgment has not been paid . Executions issuing from the
general, who shall prosecute such actions whenever it shall appear the
superior court may issue immediately after the term at which judgthat this section has been violated . Acts of 1903 , page 1124.
ment was rendered and shall be returnable to the next term of the
court beginning not less than forty days after the issuing thereof.
Courts. The supreme court is the appellate court of last resort.
It sits twice a year. The superior courts have exclusive original
Issuing from a justice's court they are returnable in sixty days.
jurisdiction of all civil actions, whereof original jurisdiction is not
Articles of personal property not to exceed the value
given to some other court, and they have appellate jurisdiction of of Exemptions.
$ 500, and real estate not to exceed $ 1,000 in value, to be selected
or a justice of the peace.
all cases determined by a superior court clerk
by the owner thereof, and to be valued by three sworn appraisers.
They sit twice a year in every county, and in some of the countles
provided he be a resident of the State. The homestead is not exempt
oftener. Clerks of the superior court have jurisdiction of the probate from
to be sold for contract made for the purchase of the
of deeds, granting letters testamentary and of administration , appoint- same, liability
nor for taxes. The widow and infant children are entitled to
ment and removal of guardians, apprenticing orphans, auditing of the
homestead until the youngest child reaches the age of twenty-one
administration and guardian, receivers' and trustees' accounts, the
The statute of limitations shall not run against any judgappointment and removal of trustees. Their offices are always open. years.
ment owing by the owner of a homestead or homestead interest, durJustices of the peace have original jurisdiction of all civil actions ing
the
existence
of such homestead or homestead interest, whether
$200,
founded bn contracts, when the sum demanded does not exceed
same has been or shall hereafter be allowed, assigned, or set apart
and when the title to real estate does not come into the controversy . the
under
execution
or
otherwise. The allotted homestead shall be exempt
of
courts
superior
the
with
concurrent
They also have jurisdiction
from levy so long as owned and occupied by the homesteader or by any
civil actions not founded on contract, wherein the value of property
one for him, but when conveyed by him in the mode authorized by
in controversy does not exceed $50.
the constitution (article ten, section eight) , the exemption thereof
Days of Grace. All bills of exchange payable within the state, at ceases as to liens attaching prior to the conveyance . The homestead
sight, in which there is an express stipulation to that effect, and not right being indestructible, the homesteader who has conveyed his
otherwise, shall be entitled to days of grace as the same are allowed
alloted homestead, can have another allotted , and as often as may be
necessary: Provided, this act shall not have any retroactive effect.
by the customs of merchants in foreign bills of exchange payable at
The law of partition has been changed so that lands held in common
the expiration of a certain period after date on sight : Provided that
may be partitioned at the instance of a judgment creditor, in order
no days of grace shall be allowed on any bill of exchange; promissory
that homestead may be allotted, and mineral interests and timber
note, or draft payable on demand.
interests may be partitioned separate from the land interests.
Deeds. A scroll is a sufficient seal to a deed in North Carolina.
Foreign Corporations. (See Corporations . )
When real estate shall be conveyed to any person, the same shall
word
the
whether
in
fee,
be held and construed to be a conveyance
Fraud. Allenations, which may be contrived for fraud , shall be
"heirs" shall be used or not, unless such conveyance shall in plain deemed and taken to be utterly vold and of no effect. Every conand expressed words, show or it shall be plainly intended by the con- veyance, of any lands or goods, If the same be made with the actual
veyance or some part thereof, that the grantor meant to convey an Intent in fact to defraud such person as hath purchased, or shall purestate of less dignity.
chase, or to defraud such as shall purchase any rent or profit out of
If the deed conveys husband's lands, it should contain a clause the
same, shall be deemed utterly void.
releasing dower by the wife and should be signed by her. (See
Fraudulent Sales. The sale in bulk or a large part of the whole
course of
Acknowledgments and Probate of Deeds .)
of a stock or merchandise, otherwise than inofthetheordinary
seller's business.
trade and in regular and usual prosecution
Depositions. Any party in a civil action or special proceedings
creditors
the
against
void
and
fraud,
of
evidence
facle
prima
be
shall
may take the depositions of persons whose evidence he may desire
of the seller, unless the seller, at least seven days before the same
to use. Written notice of the time and place of taking a deposition,
the
possible,
as
far
so
and,
quantity
the
showing
inventory
an
make
at
party
the
by
served
be
must
witness,
of
the
name
specifying the
of such articles included in the sale, and shall
attorney. cost price to the seller the
whose instance it is taken, upon the adverse party or: his
creditors of the proposed sale, and the price.
The time for serving such notice shall be as follows Three entire within said time notifythereof,
provided, that if the owner or owners
days when the party notified resides within ten miles of the place terms and conditions

BANKING AND COMMERCIAL LAWS- NORTH DAKOTA

1437

of said stock of goods shall at any time before the said sale execute tract made, or for damages incurred by her before the marriage, shall
a good and sufficent bond to a trustee therein named, in an amount not be impaired by such marriage. No man by marriage shall incur
equal to the actual cash value of said stock of goods, and conditional any liability for debts owing or contracts made or for wrongs done
that the seller of said stock of goods will apply the proceeds of said
by his wife before marriage. (See Deeds, Exemptions, and Free
Traders .) Every married woman, upon the death of her husband
sale, subject to the right of the owner or owners to retain therefrom
the personal property exemption or exemptions as are allowed by intestate, or in case she shall dissent from his will, shall be entitled
law, so far as it will go in payment of debts actually owing by said
to an estate for her life in one-third in value of all the lands, tenements,
owner
or owners,
then the
of this act shall not apply.
and hereditaments whereof her husband was seized and possessed at
Fraudulent
Trading
.