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DIGEST OF BANKING AND
COMMERCIAL LA W S
Compiled Expressly for

TH IS EDITION O F

T he R and-McNally B ankers *Directory
by

Those Prominent Lawyers Whose Names Appear at the
Head of the Laws of Each State

The Following States Have Put in Operation
THE

NEGOTIABLE

In Effect
State
A la b a m a ....................................... ......................J a n .
1, 1908
A r iz o n a ................. . . .................
1. 1901
A r k a n s a s ..........! ..........................
22, 1913
1917
C a lifo r n ia ......................................
C o lo r a d o . ..................................... ...................... J u ly 19, 1897
C o n n e c tic u t . .............................
5, 1897
1, 1912
D e la w a r e ....................................... ................. ...J a n .
D ist. o f C o l u m b i a ................... ...................... A p r .
3, 1899
F lo r id a ...................... ..................... ...................... A u g .
3, 1897
H a w a ii............................................
20, 1907
I d a h o .............................................. ......................M a r . 10, 1903
Illinois ......................................... .. ................. ...J u ly
1, 1907
I n d i a n a .........................................
1, 1913
I o w a ................... ............................ ...................... J u ly
4, 1902
K a n s a s ...........................................
8, 1905
K e n t u c k y .....................................
13, 1904
L ou isia n a ....................................... ................. .. . A u g .
1, 1904
M a r y l a n d ....................................
1, 1898
M a s s a c h u s e t t s ........................... ...................... J a n .
1, 1899
M ic h ig a n .............................
......................S e p . 16, 1905
M in n e s o t a .................................. .. ............
.A p r . 24, 1913
M ississip p i............................ ...... ............... .. . - J u ly
7, 1916
M i s s o u r i............................. .. . . .
16, 1905
M o n t a n a ...................... ..................
7. 1903

INSTRUMENTS

LAW

State
In
N e b r a s k a . ■. f .............................
N e v a d a .......................................
N e w H a m p s h ir e ......................
N e w J e r s e y ............................. . .................-J u ly
New- M e x i c o .............................
N e w Y o r k ............ .....................
N o r t h C a r o lin a ........................
N o r t h D a k o t a . . ......................
O h i o ..............................................
O k la h o m a .................................. . . . . . . . . . . . J u l y
O r e g o n .........................................
P e n n s y lv a n ia ..........................
P h ilip p in e s . .............................
R h o d e I s l a n d ........................... ................. .. • J u ly
S o u th C a r o l i n a ........................
S o u th D a k o t a ............................
T e n n e s s e e ................... ..............
U t a h .............................................. ........................ J u ly
V e r m o n t .................................... ...................... F e b .
V i r g i n i a ...................................... ........................ J u ly
W a s h in g t o n ...............................
W . V ir g in ia ......................
W i s c o n s i n ..................................
W y o m in g ....................: ............ ..................... . F e b .

Effect
1, 1905
1, 1907
1, 1910
4, 1902
2 1 , 1907
1, 1897
8, 1899
1. 1899
1, 1903
20, 1909
1*. 1899
2. 1901
3 1 . 1911
1, 1899
25. 1914
1, 1913
16, 1899
1, 1899
13. 1913
1. 1898
7. 1899
1, 1908
15. 1899
15. 1905

tu t

For Tabulated Information concerning Interest Rates, Days of Grace and Statutes of Limitation
see Page 14

100

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1569

I

Dates of Regular Meetings
of Legislatures
Alabama ______
A la sk a ____________
Arizona ___________
Arkansas__________
C alifornia_________
Colorado __________
Connecticut ________
Delaware__________
District of Columbia
Florida. ____________
G eorgia__________ _
H aw aii_________ ___
Idaho ______________
Illinois___ .________
In d ia n a ___________
Iow a _______________
Kansas_____________
Kentucky__________
L ou isia n a _________
M aine___________ _
M a ryla n d_________
Massachusetts _____
Michigan___________
M innesota_________
Mississippi-____ .___
Missouri__________ _
M on tan a_________ _
Nebraska____ !__ _
N e v a d a _______ :____
N ew Hampshire___
N ew Jersey_________
N ew M exico________
N ew York.__________
North Carolina_____
North Dakota______
O h io ___________1___
Oklahom a_____1___
O regon_____________
Pennsylvania —
j
Rhode Isla n d -.____
South Carolina..____
South Dakota______
Tennessee_________
T exas____________ _
U tah_________ ______
Verm ont _____ ______
Virginia—__________
W ashington - __ ____
W est V irgin ia_____
W is c o n s in _________
W y o m in g __ _______

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January, 1915, and every four years.
. _A Territory.
. January
January
-Tanuary
January
.—Under U. S. Government.
. -June

__ _

_

January

----------- .— Every odd year.

January
Mav ...
January
-January
_ January ._
Tanuary
Tanuary
Tanuarv

— -------Every odd year.

- — Every odd year.
--------------- Every odd year.
—
_ Every odd year.

—Tanuarv
—January
—January
_ — ------Every year.
—
— Every odd year.
—
----- Every odd year.

January
— Tanuarv
— Tanuary
—January
—January
_ January
-Tanuarv

_ _ —

-Every odd year.

—January______
_January
_ January

----- ---------E very odd year.
------- --------Every odd year.
1570

DIGEST OF BANKING AND COMMERCIAL LAWS
COMPILED EXPRESSLY FOR EACH EDITION OF THE RAND-McNALLY BANKERS’ DIRECTORY
by prominent Attorneys in each State of the United States and each province of Canada, the name
of the compiler appearing at the head of each State. £ The Laws are entered alphabetically
according to States. Provinces of Canada are listed last.

IMPORTANT:

The states in which the Uniform Negotiable Instruments Law is in effect are listed on the
index to Laws.
For Tabulated Inform ation, for quick reference in regard to Interest Rates, Days of
Grace, and Statutes of Limitations, see page 14.

SYNOPSIS OF

THE LAW S OF ALABAMA
RELATIN G TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised b y R i t t e r & W ynn , Attorneys at Law,
Birmingham. (See Card in Attorneys’ List.)
A ck n ow led g m en ts or proof of real estate^ instruments may be
before one of the following courts or officers: 1st. Within this State,
judges of the supreme and circuit courts and the clerks of such courts,
chancellors,, registers in chancery, Judges of the courts of probate,
justices of the peace, and notaries public. The official should certify
that the person signing the conveyance is known to him and acknowl­
edges that “ being informed of the contents of the conveyance he
executed the same voluntarily on the day the same bears date.”
2d. Outside of State— Judges and clerks of any federal court, judges
and clerks of any court of record in any state, notaries public, or com­
missioners appointed by the governor of this State; beyond the limits
of the United States, by the Judges of any court or record, mayor or
chief magistrate o f 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.”
A ctions. 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, tbe obligation is several as well as joint.
A cceptance. Unconditional promise in writing to accept a bill
before or after drawn is good in favor of all who take it upon faith
thereof for value. The holder may decline a qualified acceptance and
treat the bill as dishonored; if he takes qualified acceptance drawer
and endorsers are discharged.
A C heck. 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 bolder
has check certified the drawer and endorsers are discharged. The
making, uttering, drawing, or delivery o f a check, draft, or order
upon which payment is refused upon due presentation because o f
lack of funds shall be deemed prima facie evidence o f intent to de­
fraud and party may be convicted o f a misdemeanor.
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
ohanges the law in this State as to suggest the propriety of special
examination in any doubtful case.
A d m inistration of estates is had in the probate courts of dece­
dents' residence. All claims must be presented within twelve months
after the same have accrued or within t.welve months after the grant of
letters testamentary or of administration, or else.barred. Infants and
persons of unsound mind have one year to present their claims after
disabilities removed. Administration of intestate is granted, 1st:
To the husband or widow; 2d: The next of kin entitled to share in
tne 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 o fxdeath. Preference must be
exercised within forty days or rights relinquished. It several entitled
m ^minister, men are preferred to women and whole blood to half
bloom 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. A non-resident may be
appointed administrator or executor of a deceased resident’s estate. . Affidavits may be taken within the State before every judge or
«iu °* 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 t'nited States may be taken before any judge or
raerk of federal court, judge of any court of record in any state,
notaries public and commissioners appointed by tbe governor. For­
eign officer taking affidavit must attach seal.
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 citi­
zens.” — Sec. 34, Const.
„.A lterations. When a negotiable instrument is materially altered
the assent of all the parties liable thereon, it Is avoided
»»no * j8,8 against a party who has himself made, authorized, or
«ssented to the alteration and subsequent endorsers. But when an
instrument has been materially altered and is in the hands o f a holder
tWo . course’ n°t a party to the alteration, he may enforce payment
Jif »n according to Its original tenor. Material alterations consists
ni»o
anges 1Q date; sum payable, Interest on principal; time or
,Payment: number and relation of parties; medium or currency
,n which payment is to be made.


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A r b itr a tio n . Courts are compelled by statute to make an order
submitting cases for arbitration when moved for b y the parties, and
to continue this cause for one term for an award, but not longer with­
out consent of parties, or good cause being shown therefor. The
award of the arbitrators may be entered up and enforced as the judg­
ment of the proper eourt whether made in a pending suit or not.
A rrest. There can be no arrest on civil process, except for con­
tempt and in cases of alleged lunacy.
A ssig n m e n ts an d I n s o lv e n cy . 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
o f payment is given to one or more creditors, shall enure to the benefit
o f all the creditors equally, but this section shall not apply to mort­
gages, pledges, or pawns given to secure a debt contracted contem­
poraneously with the execution o f the mortgage. All assignments by
a debtor made with intent to hinder, delay, or defraud creditors are
void. All deeds o f assignment for the benefit o f creditors shall, assoon as executed, be filed and recorded in the office o f the judge o f
probate o f the county in which the property is situated. Every
judgment confessed, attachment procured by the debtor, or other dis­
position o f property b y which a debtor conveys all, or substantially
all, o f his property which is subject to execution in payment or as
security for a debt shall be deemed a general assignment.
A tta c h m e n t process will issue upon affidavit by the creditor or his
agent o f the amount due and that the debtor absconds, or resides,
out o f the State, or secretes himself so that process cannot be served
upon him, or is about to remove out o f the State, or has or is about to
fraudulently dispose o f his property, or fraudulently withholds money,
chattels, or effects which are liable to the satisfaction o f his debts;
plaintiff must give bond in double the amount claimed. Attachments
will issue for the following demands: 1 : T o enforce the collection o f
a debt, whether it be due or not, at the time the attachment is taken
out. 2 : For any moneyed demand, the amount, o f which can be
certainly ascertained. 3: T o recover damages for a breach o f con­
tract when the damages are not certain or liquidated. 4 ; When
the action sounds in damages merely in falling cases, viz. 1 : Where
defendant is a non-resident. 2: When the defendant has absconded.
3: When defendant has secreted himself. 4: When defendant is
about to remove from the State. 5: When defendant is about to
remove his property from State. 6: When defendant is about to or
has fraudulently disposed o f his property or fraudulently withholds
same. 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 o f his residence wherefrom to satisfy the
debt. Attachments may be sued out in aid o f à pending suit when
any o f the above grounds exist by making affidavit and executing
bond. Garnishment process will issue in aid o f attachment in all
such cases. Garnishment may be dissolved by giving bond. In all
cases o f attachments sued out by a resident solely upon the ground
that the defendant is a non-resident, the attachment may issue with­
out giving bond, but if defendant appears and pleads, bond must be
given or the attachment dismissed.
B an k s. The national bank system is in force in this State uncon­
trolled in any way by State laws, except that the shares are subject
to taxation as other personal property, but the bank is required to pay
the tax.
There is no provision of law for the establishment of banks of Issue
In this State. Banks of discount and deposit may be established
under the general incorporation laws. Depositors not claiming
Interest are preferred creditors in case of insolvency.
Any banker who discounts a bill or note at a greater rate than 8
per cent cannot enforce the collection of same except as to the prin­
cipal, and if any interest has been paid it must be deducted from the
principal.
C ollaterals. 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, b y advertising for five
days, at public outcry.
C on d ition a l 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 o f the probate
judge.
Conditional contracts o f sales must be recorded in office o f the
Judge o f Probate o f the county in which the property is located
to be valid against subsequent purchasers, judgment creditors, or
mortgagees without notice, except in counties having a population
o f more than 80,000 and when contract is for a less amount than $200.00.
C on tra cts. In the following cases, every agreement Is void, unless
such agreement, or some note or memo, thereof, expressing the con- .
sidération, is in writing and signed by the party to be charged: I
Every agreement which by its terms is not to be performed within
one year from the making thereof. 2. Every special promise by an
executor or administrator to answer damages out of his own estate
3. Every special promise to answer for the debt, default, or miscar­
riage of another. 4. E veiy agreement, promise, or undertaking
made upon consideration o f marriage, except mutual promises to
marry. 5. Every contract for the sale of lands, tenements, or hered it
aments, 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.
General acknowledgment must be signed to make instrument self­
proving. Married women must acknowledge twice in the event
the homestead is conveyed. Form o f general acknowledgment is as
follows:
The State o f A la b a m a ,.....................
County.
a (style o f officer), hereby certify that.
I . - .......................
, . . . . . . . . . . . . . .......... whose name is signed to the foregoing con-

1571

1572

BANKING AND COMMERCIAL L A W S — ALABAMA

veyance and who is known to me, acknowledged before me on this
day, that, being informed o f the contents o f the conveyance, he
executed the same voluntarily on the day the same bears date. Given
under m y hand and seal, this...................day o f ........... A. D.
(Seal)
Notary Public.
C o n v e y a n ce s. 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,
and who sign their names as witnesses. If the grantor is not able to
sign his name it must be written for him, and the words ‘ ‘his mark”
written over or against it. The person writing his name must sign
as a witness. A parol lease for less than one year is valid. A married
woman over eighteen years o f 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 con­
veyances 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.
Lease­
hold ^estates may be created to last not exceeding twenty years,
but if longer void as to excess. A married woman must make the
following acknowledgment to a conveyance of a homestead:
State of ................ County of . . .* . . . .
_ I, . . . . . . . . . . . .judge o f ............ .. (or other officer) do hereby certify
that, on t h e ........ .. •••.day o f ........................ 1 9 . . . . , came before me
the within named ................................... . known to me (or made
ta o w n to me) to be the wife of the within n a m e d ............................... ,
who, being examined separate and apart from her husband touching
her signature to the w ith in .................... 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.
In witness ^whereof, I hereto set my hand this ............... day of
,,
,
(Official Character.)
Corporation to make following acknowledgment:
............................................... that................................................................
whose name a s ................................... . of the said corporation, is signed
to the foregoing conveyance, and who is known to me, acknowledged
Defore 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.
C o rp o ra tio n s. 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,
ffie 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 o f insurance, the statement must be filed in the
office of the Insurance commissioner. It 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 busi­
ness in this State without complying with above provisions, for each
offense forfeit to the State $1,000, and any person acting as agent for
foreign corporation that has not so complied, forfeits for each offense
$500. All foreign corporations doing business in this State are
required to pay license fees ranging from $25 upward, According to
capital. Foreign corporations can do no business until fees are paid
and all contracts before then are void. Every foreign corporation
required to procure from secretary of state a permit to do business
in the State. This permit costs $10 per annum.
C ou rts. Terms and jurisdiction. The supreme court, except
to Issue writs of Injunction, habeas corpus, quo warranto, and other
remedial and original writs necessary to its supervision of inferior
oourts, and impeachments of judicial officers, has bnly appellate juris­
diction and cases are tried on the record sent up. Court of appeals
has final appellate jurisdiction in the following cases: 1. When
Hie amount involved exclusive of interest and costs does not exceed
the sum of $1,000. 2. Of all misdemeanors, including the violation
of town and city ordinances, bastardy, habeas corpus, and all felonies,
where the punishment has been fixed at twenty years or under.
Circuit courts have unlimited common law jurisdiction when the
matter or sum in controversy exceeds $50, and exclusive jurisdiction
o f 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 o f the peace have jurisdiction of all
civil causes where the amount in controversy does not exoeed $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-part­
ners, but judgment in such suits bind only partnership’s property,
not that of individual partners. The writ may be served upon any
one o f 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 there­
after as the court may direct. Money may be deposited with the
clerk instead of sureties.
D ays o f G race are abolished. (See Negotiable Instruments.)
D e p o sitio n s. In cases at law, depositions may be taken of wit­
nesses who cannot be present at the trial in the following cases:
When the witness is a female; when the witness is too sick to attend
court; when the witness resides more than 100 miles from the place of
trial, or is absent from the State; when the witness is about to leave
the State, and not return in time for the trial; when the witness is the
sole witness of the facts; when the witness is one o f the officers desig­
nated In Code No. 4030. Affidavit must be made of one of the above
facts, and of the materiality of the witness. May be taken on inter­
rogatories by a commissioner appointed by the court for that purpose.
The commissioner may be any suitable person, need not be an officer.
In equity suits, where witnesses live within 100 miles of the place of
trial, depositions may be taken by oral examination before the regis­
ter, or a special examiner, or commissioner appointed for the purpose.
D e sce n t a n d D istrib u tio n . 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


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o f kin in equal degree in equal parts. If there are no next of U
it escheats to the State. The personal estate is distributed the s
as the real estate, except that if there are no children the widow u,
entitled to all of the personal estate. If but one child she takes oni!
half. If not more than four children to a child’s part, and if mim!
than four to one-fifth. Posthumous children take as others iileni«
mate children inherit from their mother. The husband upon th.
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 divestM
of all control over her estate by a decree of the chancery court
Damages recovered by personal representation for death of deceased
are distributed according to statute of distribution and are exemm
from payment of debts.
D ow er. Unless the wife has relinquished her right of dower in th«
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 fp«
■ M w g tn e marriage, or of which another was seized to his use or tn
which he had a perfect equity, having paid all the purchase monev
therefor. The dower interest Is one-half when the husband leaves no
lineal descendants, and one-third when the estate is insolvent or th.
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
E x ecu tion s. j Property subject to: 1st: On real property to
which the defendant has a legal title or a perfect equity, having paid
the purchase money, or in which he has a vested interest, in possession
reversion, or remainder, whether he has the entire estate, pr is entitled
to It in common with others. 2d: On personal property of the defen­
dant (except things in action), whether he has the absolute title thereto, or the right only to the possession thereof for his own life, the life
of another, or a less period. 3d: On an equity of redemption in either
land or personal property, when any interest less than the absolute
title is sold. The purchaser Is subrogated to all the rights of the
defendant, and subject to all his disabilities. W rit 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 at
long as writ is regularly delivered to the sheriff without the lapse of an
entire term. A statement of a judgment certified by the clerk of the
court may be filed In the office of the judge of probate, which makes
the judgment a lien within the county in which it is filed for ten years
thereafter. Execution may be issued on such judgment at any time
Executions issued by justices are liens on the property of the defen­
dant, on which they are levied, from the time of the levy. An order
must be obtained from the circuit court for the sale of lands levied on
under execution from a justice’s court. No stay of execution in circuit
court except by appeal, and supersedeas bond which delays collection
until affirmance by supreme court, and entails 10 per cent damages,
with legal interest and costs. In justice’s court stay is granted on
good security, below $20, thirty days over $20, sixty days.
E x em p tion s. Homestead not exceeding 160 acres or $2,000 in
value.
Personal property to the amount o f $1,000. Exemption of personal
property may be waived by instrument in writing except as to certain
household furniture and provisions and wages to amount of $25.00
per month.
F raud . Obtaining money or goods on credit under false color or
pretense of carrying on business, or under false representation of
pecuniary condition, with intent to defraud, or bringing into the State
money or goods so obtained, punished as larceny.
^ G arnish m en t may issue in any case after suit commenced upon
affidavit of necessity and bond as in attachment cases, or after Judg­
ment, without bond.
H olid ays. The following are the legal holidays; Sunday, Christ­
mas Day,a First day of January, 19th day of January, 22nd day of
February, Mardi Gras Day, 13th day of April, 26th day o f April, Tues­
day before Ash Wednesday, 3rd day o f June, 4th day of July, first
M onday in September, 12th day o f October, 2nd Tuesday in October,
and day designated b y the Governor for public Thanksgiving. If
Christmas Day, or the first day o f January,, or the 19th. day of Jan­
uary, or the 22nd day of February, or the 13th day of April, or the
26th day o f April, or the 3rd day o f June, or the 4th day o f July falls
on Sunday, the M onday following is the holiday. I f any paper becomes
due on a holiday, it must be taken as due on the next succeeding busi­
ness day.
H u sban d a n d W ife. The wife has full legal capacity to contract
as if she were sole, except that she can not alienate or encumber her
real estate without the husband joining in the conveyance, unless the
husband be insane or has abandoned her, or is a non-resident, or ii
imprisoned under a cbnviction for crime for a period of two years or
more, in which cases the wife may convey it as if she were sole.
Husband and wife may contract with each other, but the wife can­
not be surety for the husband. Ali of the property and the earning«
of the wife are her separate estate, and are not liable for the debts of
the husband. The wife must sue and be sued alone for all matters
relating to her separate estate or contracts, and for all torts to her
person or property.
The chancery court has power to relieve of any
or all disabilities of coverture.
In terest. Legal rate is 8 per cent, and same is allowed on all open
accounts, judgments, and decrees. Usury forfeits all interest and
any stuns paid as interest on an usurious contract shall be credited on
the principal.
J u d g m e n ts of courts of record are proved by a certified transcript.
Judgment not a lien, but when a certified statement thereof, made by
the court of the clerk, is Qled 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.
M e ch a n ic s’
L ien.
Contractors,
including
subcontractors,
mechanics, material men, and laborers have a lien on houses built
and the ground on which they stand upon complying with the law.
L ien fo r B e n t. The landlords of any store house, dwelling house,
or other building, shall have a lien on the goods, furniture and effects
belonging to the tenant, and sub-tenant for his rent, which shall be
superior to all other liens, except those for taxes, also on crops grown
on rented premises for rent of the current year.
L im ita tio n s. Notes and stated accounts, six years; open accounts,
three years; sealed instruments, real actions, and motions against
officers, ten years; judgments, twenty years; actions on the case, one
year. Bar created by statute can only be removed by a partial pay*
ment, made on the contract before the bar is complete, or by an uncon­
ditional promise in writing. If anyone entitled to bring an action,
or make an entry on land, or defense founded on title to real estate,
be at the time such right accrues, within the age of twenty-one years,

BANKING AND COMMERCIAL L A W S — ALASKA
nr 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
•ucb 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
tn writing not under seal, or for trespass to person or property, must
he brought within six years. Statutes of limitation are made appli­
cable to equitable as well as legal demands, but do not run against direct
trusts Any agreement or stipulation to shorten the period prescribed
by law for the bringing of any action is void. Actions seeking relief
on the ground of fraud where the statute created a bar. the cause of
action begins to run upon discovery of the fraud by aggrieved party.
No promise or acknowledgment is sufficient to remove the bar to a
suit, except a partial payment made upon the contract by the party
sought to be charged before the bar is complete, or an unconditional
promise in writing, signed by the party to be charged thereby.
Married W o m e n . (See Husband and Wife.)
M ortgages 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
asale. All mortgages are void against creditors or purchasers without
notice, unless recorded. Mortgages operate as notice from day pf
delivery to probate judge for record. There is no fixed time within
which they shall be recorded. Homestead realty cannot be mort­
gaged or otherwise aliened without the voluntary signature and assent
of wife, evidenced by acknowledgment, upon private examination
separate and apart from the husband, and certified. 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 representa­
tive, and title to reality in the heirs, devises, or legatees of the mortga­
gor. 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 In s tru m e n ts. Must be payable in money and must
oontain 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 but cannot authorize confession o f judgment if it
reads, “ I promise to p a y ” 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; can 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 o f a deceased person; absence
or failure o f 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 dn 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; ,n° days o f 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 Satur­
day. Fraud and circumvention in procuring execution o f instrument
is a defense against any holder.
Powers o f A tto rn e y . Powers o f attorney or other instruments
conferring authority to convey property must 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 o f attorney to relinquish dower must be
executed by husband and wife jointly. Her signature must be
acknowledged as required for conveyances o f land.
P resentm ent. Is not necessary to charge one primarily liable
except in case of bank notes; if payable at special place ability and
willingness to pay it there at maturity is equivalent to a tender; if
not on demand it must be presented on day it falls due, if on demand
then within a reasonable time after its issue, except a bill of exchange
must be presented within reasonable time after its last negotiation.
Probate L aw . A court of probate, consisting of one judge, is
established for each county in the State. This court has jurisdiction
of the probate of wills, of granting letters testamentary and of admin­
istration, and the repeal or revocation of the same; of the settlements
of accounts of executors and administrators, of the sale and disposition
of the real and personal property belonging to, and the distribution of.
Intestates’ estates. Also of thé appointment, removal, and settlements
of guardians for minors and persons of ufisound mind, the binding out
of apprentices, the allotment of dower, and the partition of land belong­
ing to joint owners. A court of probate must be held at the court
house of each county on the second Monday of each month, and the
judge may hold special or adjourned terms whenever necessary, but
such court must at all times be considered open, except on Sundays.
It also keeps a record of deeds, mortgages, and instruments entitled
to record.
Prom issory N ote. Must be unconditional promise in writing to
pay on demand or at fixed or determinable time a sum certain in money
to order or bearer, and where drawn to maker’s own order is not com­
plete until endorsed by him; may be in installments.
Protest. (See Negotiable Instruments.)
Protest o f F o re ig n B ills. 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 bands
of drawee and he is not liable unless he accepts.
Replevin. W rit o f replevin lies to recover property^ in custody o f
an officer o f the law, and is limited to this. The action o f detinue
lies to recover personal property in all other instances.
Taxes become due on October 1st, and delinquent on the 31st of
December of the year for which they were levied, and the lands may
be sold by, certain proceedings in the probate court commenced in
the month of March following. Rate of taxation is sixty-five per
rent on each $100.00, for State purposes. County may levy a like
amount. Municipalities may levy a lax not to exceed one half of
one per cent. The purchaser of lands sold for delinquent taxes
receives from the collector a certificate o f purchase, containing a
description of the property, the date and amount of assessment,
taxes, costs, fees, etc., which after the expiration of two years from
the date of the sale is exchangeable for a deed from the probate
judge—which is prima facie evidence of title. Lands sold for taxes
may be redeemed within two years by the owner, mortgagee, or any
person having a beneficial Interest therein by depositing with the
probate judge of the county In which the lands were sold, the amount
of purchase money, with interest at 15 per cent per annum, and all
taxes which have accrued subsequent to the sale, and interest thereon,
at 8 per cent per annum; also all costs and charges. Whenever land
« sold for State or county taxes, and from any cause such sale is in­
valid to pass title to purchaser, sale operates as transfer to purchaser


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1573

of lien of state or county, or the property for payment of taxes for
which sold. All cotton factories or cotton mills which shall be
constructed In this State within five years shall be exempt from
taxation for a period of ten years, provided such mills represent an
Investment of $50,000.
W ills. All wills o f real or personal property must be in writing
signed by the testator and declared his last will and testament in the •
presence o f two witnesses who must sign as witnesses in the presence
of testator and each other. Unwritten will o f personal property valid
only when the property does not exceed $500 in value, and must be
made during last sickness by testator at his hom e; Persons present
must be called on to witness that it is testator’s will and must be
reduced to writing b y one o f the witnesses within six days. Minor
over eighteen may make a will o f personal property. N o will effective
until probated. M ay be contested in probate or chancery court.

SYNOPSIS OF

THE LAW S OF ALASKA
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised b y O. D . O och ra n . Attorney at Law, Nome.
(See Card in Attorneys’ List.)
A c k n o w le d g m e n ts. (See Deeds.)
A c tio n s. The distinction between actions at law and suits in
equity and all forms of pleading heretofore existing in actions at law
and suits in equity are abolished, and there is but one form of action,
denominated a civil action, for the enforcement or protection of pri­
vate rights and the redress o? prevention of private wrongs. Every
action must be prosecuted in the name of the real party in interest,
except that an administrator or executor, a trustee of an express trust,
or a person expressly authorized by statute may sue without joining
with him the person for whose benefit the action Is prosecuted; but
the assignment of a thing in action not arising out of contract is not
authorized.
A ffid a v its. An affidavit or deposition taken out of Alaska, other­
wise than upon commission, must be authenticated as follows; I .
It must be certified by a commissioner appointed by the governor of
Alaska to take affidavits and depositions in the state, territory, district
or country where taken; or, 2, it must be certified by a judge of a
court of record having a clerk and a seal to have been taken and sub­
scribed before him at a time and place therein specified, and the
existence of the court, the fact that such judge Is a member thereof,
and the genuineness of his signature must be certified by the clerk
of the court, under the seal thereof. In all affidavits or depositions
witness should speak in the first person.
A lien s. Any alien who Is a bona fide resident of the United States,
or who has declared his Intention to become a citizen, or whose rights
are secured by treaty, may acquire and hold lands upon the same terms
as a citizen. Any alien may acquire lands by inheritance or in the
ordinary course of justice in the collection of debts, and may acquire
and enforce liens Upon lands, but such lands must be sold within ten
years. Any alien may also acquire and hold lots or parcels of land
in any Incorporated or platted city, town, or village, or in any mine
or mining claim, but is not authorized to acquire title from the United
States to any of the public lands.
A rrest. The defendant may be arrested in the following civil
actions: 1. For the recovery of money or damages when the de­
fendant Is about to remove from the district with Intent to defraud
his creditors; for an injury to person; or for willfully injuring or wrong­
fully taking, detaining, or converting property. 2. For a fine or
penalty; or for money or property embezzled or fraudulently mis­
applied or converted to his own use by a public officer, or by an attor­
ney, or by an officer or agent of a corporation in the course of his
employment as such, or by any agent, broker, or other person in a
fiduciary capacity or for misconduct or neglect in office or in a profes­
sional employment. 3. To recover the possession of personal
property unjustly detained, when the property or any part thereof
has been concealed, removed, or disposed of, so that it cannot be
found or taken by the marshal, and with intent that It should not be
so found or taken, or with the Intent to deprive the plaintiff of the
benefit thereof. 4. When the defendant has been guilty of fraud in
contracting a debt, or incurring the obligation for which the action is
brought, or In concealing or disposing of the property for the taking,
detention, or conversion of which the action is brought. 5. When
the defendant has removed or disposed of his property, or is about to
do so, with Intent to defraud his creditors.
A tta c h m e n t. The plaintiff, at the time of issuing the summons
or afterwards, may have the property of defendant attached in an
action upon a contract, express or implied, for the direct payment of
money, and, 1, which is not secured by mortgage, lien, or pledge upon
real or personal property, or if so secured, when the security has been
rendered nugatory by the act of the defendant,' or, 2, against a non­
resident defendant. The writ issues whenever the plaintiff, or any­
one in his behalf, files an affidavit showing that defendant is indebted
to plaintiff (specifying the amount of indebtedness over and above all
legal set-offs or counter-claims) upon a contract, express or implied,
for the direct payment of money; that the payment has not been
secured by mortgage, lien, or pledge upon real or personal property;
and that the sum for which attachment is asked is an actual, bona fide,
existing debt due and owing from plaintiff to defendant; and that the
attachment is not sought nor the action prosecuted to hinder, delay,
or defraud any creditor of the defendant. Plaintiff must also file an
undertaking, with one or more sureties, in a sum not less than $100,
and equal to the amount for which he demands judgment, conditioned
that plaintiff will pay all costs adjudged and all damages sustained
by reason of the attachment if the same be wrongful or without suffi­
cient cause, not exceeding the amount specified.

1574

BANKING AND COMMERCIAL L A W S — ALASKA

C h a ttel M o rtg a g e s. A ny interest In personal property, capable
ol being transferred, may be mortgaged; but the mortgage is void as
against creditors and subsequent purchasers and incumbrancers in
good faith and for value, unless possession of the property be delivered
to and retained by the mortgagee or the mortgage provide that the
property may remain in the possession of the mortgagor and be ac­
companied b y the affidavit of all the parties thereto that the same is
• made in good faith to secure the amount named therein, and without
design to hinder, delay, or defraud creditors, and be acknowledged
and hied. The mortgage must be acknowledged b y the mortgagor
as a conveyance of real property is and be filed In the office of the
recorder of the precinct where the mortgagor resides and of the pre­
cinct where the property is. Within thirty days next preceding the
expiration of one year from the filing, a true copy of the mortgage,
with a verified statement of the interest of the mortgagee in the prop­
erty at the time the same is renewed, must be filed in the office where
the original was filed, and the lien is thereby extended another year.
Chattel mortgages are foreclosed in the same manner as mortgages
and liens upon real property, but a clause rpay be Inserted in a mortgage
authorizing the marshal to execute the power of sale therein granted
to the mortgagee.
C orp ora tion s. Domestic Corporations. Three or more adult per­
sons, bona fide residents of the district, may form a corporation for
the following purposes: To construct, own, and operate railroads,
tramways, street railways, wagon roads, flumes, and telegraph and
telephone lines in Alaska; to acquire, hold, and operate mines in
Alaska; to carry on the fishing industry In Alaska and the waters
adjacent and contiguous thereto; to construct and operate smelters,
electric and other power and lighting plants, docks, wharves, elevators,
warehouses, and hotels in Alaska; and to carry on trade, transporta­
tion, agriculture, lumbering, and manufacturing in Alaska.
Foreign Corporations. Every corporation or joint stock company
organized under the laws o f the United States or any state or territory
shall, before doing business within the district, file in the office of the
secretary of the district and in the office of the clerk of the district
court for the division wherein It intends to carry on business a duly
authenticated copy of its charter or articles of incorporation, and also
a statement verified by the oath of its president and secretary and
attested by a majority of its board o f directors. Thereafter such
statement must also be so filed within thirty days after July first of
each year.
D eeds. A conveyance o f lands, or of any estate or interest therein,
may be made by deed, signed and sealed by the person from whom
the estate or interest is intended to pass, and acknowledged or proved,
and recorded, without any other act or ceremony. A quit-claim deed
passes all the estate which the grantor could convey by deed of bargain
and sale. No covenants are implied in any conveyance. The term
/"heirs,” or other words o f inheritance, are not necessary to create or
convey an estate in fee simple. Husband and wife may, by their
joint deed, convey the real estate of the wife, in like manner as she
might do by her separate deed if she were unmarried. A married
woman residing in the district, joining her husband in a deed, must
acknowledge that she executed such deed freely and voluntarily.
When a married woman not residing in the district joins her husband
in conveying real estate situate in the district, the conveyance has the
same effect as if she were sole, and the acknowledgment or proof of the
execution may be made the same as if she were sole. Within the
district deeds must be executed in the presence of two witnesses, who
shall subscribe their names as such; and the person executing a deed
may acknowledge the execution before a judge, clerk of the district
court, notary public, or commissioner within the district, and the
officer taking the acknowledgment must indorse thereon a certificate
o f acknowledgment and the true date o f making the same under his
hand.
D e p o sitio n s. The testimony o f a witness. In the district, may
be taken by deposition, in an action, at any time after the service of
the summons or the appearance of the defendant, and in a special
proceeding after a question of fact has arisen, when, 1, the witness is
a party to the action or proceeding, by the opposite party; 2, the
witness’ s residence is more than one hundred miles from the place of
trial; 3, the witness is about to go more than one hundred miles beyond
the place of trial; 4, the witness is too infirm to attend the trial; or, 5,
the testimony is required upon a motion, or in any other case where
the oral examination of the witness is not required.
The testimony of a witness, out of the district, may be taken by
deposition, by commission issued, upon five days’ notice to the other
party, by the clerk of the court, or justice of the peace in a cause in his
own court, to a person agreed upon by the parties, or, if they do not
agree, to a judge, justice of the peace, notary public, or clerk of a
eourt selected by the officer issuing the commission.
The amount of the commissioner’s fees should be indorsed upon the
deposition.
D e sce n t an d D istr ib u tio n . The real property of an Intestate
descends as follows: 1. In equal shares to his or her children and
to the issue of any deceased child by right of representation; and
if there be no child of intestate living at the time o f his or her death,
to all his or her other lineal descendants; and if all such descendants
are in the same degree of kindred to the Intestate, they take equally;
otherwise, by representation. 2. If Intestate leave no lineal descend­
ants, to his wife; or if intestate be a married woman, to her husband;
and if intestate leave no wife nor husband, to his or her father. 3.
. If intestate leave no lineal descendants, neither husband nor wife,
nor father, such real property descends in equal shares to his brothers
and sisters, and to the issue of any deceased brother or sister by
right of representation; but if intestate leave a mother, she takes
an equal share with such brothers and sisters. 4. If Intestate leave no
Upeal 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 o f such surviving children die under
ag$ 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 o f the Intestate in
equal shares, if they are In the same degree of kindred to such deceased
child; otherwise, they take by right o f representation. 7. If intes­
tate leave no lineal descendants or kindred, such real property escheats
to the United States.
D ow er an d C u rtesy. The widow of every deceased person is
entitled to dower, or the use during her natural life of one-third part
In value of all the lands whereof her husband died seized of an estate
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, altbougn such
husband and wife may not have had issue born alive.


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E v id en ce. No person may be excluded as a witness on account nt
being a party or interested in the event of an notion or proceedffiM
having been convicted of a crime, or his opinions on matters of rellriob«
belief. Persons of unsound mind and children under ten yeare of a™
who appear inoapable of receiving just impressions of the fact respect­
ing which they are examined or of relating them truly may not h«
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 hi»
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 neoesl
sary to enable him to prescribe or act.
“
E x ecu tion s. * (See Judgment and Execution.)
E x ecu tors an d A d m in istra tors. 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 oourt may select. If deceased were a married
woman administration shall in any case be granted to the husband
If qualified, and he apply therefor. Claims are paid in the following
order: 1. Funeral charges. 2. Taxes due the United States
3. Expenses of last sickness. 4. All other taxes. 5. Debts pre­
ferred 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.
E x e m p tio n s. 1. Earnings of judgment debtor, for personal ser­
vices 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, occu­
pation. or profession by which such person habitually earns bis living,
to the value of $500; also sufficient quantity of food to support such
team, if any, for «lx months; the word "team ” being construed to
lnolude not more tnan 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
yam or cloth manufactured therefrom; two cows and five swine;
household goods, furniture, and utensils to the value of $300; also
food sufficient to support such animals, If any, for six months, and
provisions actually provided for family use and necessary for the
support of such person and family for six months. 6. The seat
or pew occupied by the head of a family or his family in a place of
publio worship. 7. All property of any public or municipal corpora­
tion. No article, or the proceeds derived from its sale or exchange,
is exempt from execution on a judgment recovered for its price.
G a rn ish m en t. (See Attachment.)
H om estead . 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 laid
off into blocks or lots; or if located In any such town or city, one-fourth
of an acre. This exemption does not apply to decrees for the fore­
closure of any mortgage properly executed; but if the owners of such
homestead be married, the mortgage must be executed by husband
and wife.
In terest. 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 agree­
ment 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 'nterest.
If it is ascertained in any action upon contract that an unauthorized
rate of interest has been contracted for, judgment must be rendered
against the defendant for the amount due, without interest, and
against the plaintiff for costs. If the rate contracted for is 8 per
cent or less, the debtor may also agree to pay the taxes upon the
debt, credit, or mortgage.
J u d g m e n t an d E x e cu tio n . A Judgment Is docketed imme­
diately after entry. A t any time thereafter while, execution may
issue a certified transcript of the docket may be filed in the office
of the recorder of any recording district, and from the date of docket­
ing a judgment or transcript, thereof the judgment is a lien upon /
all the real property of the defendant within the recording district
or districts where docketed, or which he may afterwards acquire
therein during the time an execution may issue. If no execution
issues within ten years the lien expires, but is renewed if afterwards
leave is given to issue execution and a transcript of the docket of
the order docketed with the recorder.
Execution may issue at any time within five years from the entry
of the judgment, and thereafter on order of the court made on motion
of the party in whose favor the judgment was given. Such motion
must be subscribed and verified as a complaint, and summons must
be served upon the judgment debtor or his representatives, to which
he or they may demur or answer. The order made must be dock­
eted 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. Execu­
tion 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.
L icen ses. (See Taxes.)
L iens. Every mechanic, artisan, machinist, builder, contractor,
lumber merchant, laborer, teamster, drayman, and other person
performing labor jupon or furnishing material of any kind to be used
in the construction, development, alteration, or repair, either In whole
or in part, of any building, wharf, bridge, flume, ditch, mine, tunnel,
fence, machinery, or aqueduct, or any structure or superstructure,
has a lien upon the same for the work or labor done" or material fur- ,
nished at the Instance of the owner of the building or other improve­
ment or his agent; and every contractor, sub-contractor, architect,
builder, or other person having charge of the work, in whole or in
part, is, for this purpose, deemed the agent of the owner.
L im ita tio n s. 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 liabllliy,
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

BANKING AND COMMERCIAL L A W S — ARIZONA

1575

within three years— action against a marshal, coroner, or constable,

«non a liability incurred b y the doing ot an act in his official capacity

nr 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
lotion 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 limita­
tion Within two years— action for libel, slander, assault, battery,
«eduction, false imprisonment, or for any injury to the person or
rhrhts of another not arising on contract; upon a statute for a for­
feiture 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 com­
menced within one year by private party may be within two years
by the United States.
Married W o m e n . The property and pecuniary rights of every
married woman at the time of marriage, or afterwards acquired
by gift, devise, or inheritance, or by her own labor, are not subject
to the debts or contracts of her husband, and she may manage, sell,
convey, or devise the same by will to the same extent and in the
same manner that her husband can property belonging to him. For
civil injuries damages may be recovered from a married woman
alone, and her husband is not responsible therefor. Contracts may
be made by a wife, and liabilities Incurred, and the same enforced
by or against her to the same extent and in the same manner as if
«he were unmarried. All laws which impose or recognize civil disa­
bilities 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 reg­
istered is deemed prima facie the property of the husband.
Neither husband nor wife is liable for the debts or liabilities of the
other incurred before marriage. Husband and wife may make convey­
ances 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.
M ortgages. Mortgages are executed, acknowledged, and recorded
in the same manner as deeds. No covenant is Implied for the
payment of the sum Intended to be secured. Record of assignment
b not notice to the mortgagor, his heirs, or personal representa­
tives. Mortgage may be discharged by entry in margin of record
signed by mortgagee or his personal representative or assignee and
witnessed by the commissioner or deputy, or by „certificate executed
and acknowledged as other conveyances. Foreclosure is by action
of an equitable nature in which a deficiency judgment may be had.
Notes ■an d B ills o f E x ch a n g e . On all bills of exchange and
all negotiable promissory notes, orders, and drafts payable at a
future day certain within the district, grace is allowed; but grace
b not allowed on bills of exchange, notes, or drafts, payable at sight
or on demand.
R ecords. An unrecorded conveyance of real property is void
as against any subsequent innocent purchaser in good faith and for
a valuable consideration whose conveyance is first duly recorded.
A commissioner is ex-officio recorder of a recording district, the
boundaries of which are fixed by the court. Conveyances of lands
not in any recording district are recorded with the clerk of that divi­
sion 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 o f
the plaintiff; or, if so seized, that it is exempt; and the actual value
of the property
Service. (See Actions.)
S upplem entary P ro ce e d in g s. (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 ca*e; salmon salteries, 10 cents per barrel;
fish oil works, 10 cents per barrel: fertilizer works, 20 cents per ton;
freight and passenger tranportations lines, propelled by mechanical
power on Inland waters and ocean and coastwise vessels doing local
business for hire, $1 per ton on net tonnage- railroads, $100 per
mile; tramways, $10 per mile; saw-mills, ,10 cents per thousand feet
on lumber sawed; quartz mills, $3 per stamp; mercantile establish­
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
'establishments doing a business of $100,000 per annum; in other lines
of trade and business the amount is fixed for each and ranges from
$10 to $500.
Wills. Every person of twenty-one years of age, of sound mind,
may dispose of all his or her property by will, saving a widow’s dower
and a husband’s rights as tenant by the curtesy. Will must be in
writing, signed by the testator, or under his direction, in his presence,
■and attested by two or more competent witnesses subscribing their
names in the presence of the testator. A will by an unmarried person
ts revoked by his subsequent marriage. Children or descendants
of children not named or provided for in the will take as if testator
had died intestate. A mariner at sea or soldier in military service
may dispose of his personal property as at common law. Proof
of nuncupative will must be made within six months, and the words
or their substance reduced to writing within thirty days after they
■are spoken. A person owning property in, but not an inhabitant
of, the district may devise or bequeath the same according to the
laws of his domicile. If such will be probated without the district,
copies of the will and the probate thereof, certified by the clerk of
the court in which It was probated, with the seal of the court affixed
thereto, if there be a seal, together with a certificate of the chief
judge or presiding magistrate, that the certificate is in due form,
and made by the clerk or other person having the legal custody
of the record, may be recorded, admitted In evidence, or contested
and annulled as if-executed and proved within the district,


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SYNOPSIS OF

THE LAW S OF ARIZONA
RELATIN G TO

BANKING AND COMMERCIAL USAGES
Revised b y C. B. W

& G e r a r d T. W a l l , Attorneys at Law.
Flagstaff, Arizona.
A c co u n ts . When stated draw interest; when action is upon
itemized account and affidavit of party, his agent or attorney is
attached, stating that such “ account is, within affiant’s knowledge,
Just and true, that it is due, and that all just and lawful offsets,
claimants, and credits have been allowed," is prima facie evidence,
unless one day before trial, defendant files written denial of any Item
under oath.
A ck n ow led g m en ts. The form o f an ordinary certificate o f ac­
knowledgment shall be substantially as follows:
“ State o f Arizona,
)gs
County o f .............................................. g................•••.•)
This instrument was acknowledged before me this...........day
o f ...................A. D ...................... by (if b y a natural person or persons
here insert name or names; if by a person acting in a representative
or official capacity, or as attorney in fact, then insert name o f person
as executor, attorney in fact, or other capacity; if by an officer or
officers o f a corporation, then insert name or names of such officer
or officers as the president or other officer o f such corporation, naming
i t ) ./
A .......................................B . . . . ................... ..
Notary Public.
(Or other officer)
*
(M y commission expires....................................... ) ”
Every instrument affecting real property in this state executed,
acknowledged and certified in any other state or territory in accord­
ance with the laws o f such state or territory, shall be valid and en­
titled to record as if executed in accordance with the laws o f this
state.
A c tio n s. Distinction in forms between law and equity are abol­
ished. Pleadings are: Complaint and answer, and in some cases a
reply.
A d m in istra tion o f E states. Lie in Superior Court. N o public
administrator. Where person dies intestate letters shall issue.
A ffidavits. M ay be taken before any officer authorized to take
acknowledgments.
■
.
A lien s. Unless rights are secured by treaty cannot hold land in
the state, may acquire by inheritance, or in ordinary course of jus­
tice in the collection o f debts; may acquire liens on real estate, may
lend money and secure same on real estate, but title so acquired must
be sold within five years; may acquire patented mines and hold
stock in domestic corporation owning unpatented mines.
The laws provide that the laws o f the state pertaining to aliens
ghn.li not be construed as to conflict in any manner with any rights
existing under and by virtue of any treaty o f the United States
with any other country.
A ppeals. Appeals are allowed from justice o f peace to superior
court in certain cases and from superior court to supreme court
where amount involved is $200 or over.
A rb itra tio n . There are statutory provisions which are not
exclusive of the common law arbitration.
A rrest. Abolished in civil cases, debtor fraudulently removing
property out of territory or concealing it may be prosecuted criminally.
A tta c h m e n t. Writ will issue on affidavit showing: 1, That
defendant is indebted to plaintiff Upon a contract, express or implied,
for the direct payment of money and that such contract was made or
is payable in this Territory, and that the payment of the same has not
been fully secured by mortgage, lien, or pledge of personal property,
or if originally so secured, that such security has, without any act of
plaintiff or the person to whom the security was given, become value­
less and shall specify the character of the indebtedness, that the same
is due to the plaintiff over and above all legal set-offs or counter-claims,
and that demand has been made for the payment of amount due: or.
2 That defendant is Indebted to plaintiff, stating amount and char­
acter of debt; that same is due and payable over and above all legal
set-offs and counter-claims, and that défendant is a non-resident of
this Territory or is a foreign corporation doing business in this Terri­
tory- or, 3. That an action is pending between the parties, and that
defendant is about to remove his property beyond the jurisdiction of
the court to avoid payment of judgment; and, 4. That the attach­
ment is not sought lor a wrongful or malicious purpose, and that the
action is not prosecuted to hinder or delay any creditor of defendant.
5. No such attachment shall issue until suit has been duly instituted,
but it may be issued in a proper case either at the commencement of
the suit or at any time during its progress. 6. The Writ may issue,
although plaintiff’s debt or demand be not dUe under specified tacts of
intent to defraud; no final judgment shall be rendered until such debt
or demand shall become due. Writ may issue at or after action began
upon plaintiff or some one in his behalf filing the affidavit, and upon
filing a bond with two sureties in an amount equal to amount sued for
Sureties can be compelled to justify upon notice. When more than
one attachment is levied on same property writs take priority accord­
ing to time of levy. (See Liens, Garnishment.)
R an k e— Savi n g s and L oan . May be incorporated to loan and
invest property. May hold lot and building in which business is
carried on to value of $100,000; such as may accumulate on good
faith loans and such personal property as may be required in transil s o n

1576

BANKING AND COMMERCIAL L A W S — ARIZONA

acting its business. To purchase and convey evidence o f debt except
-national, territorial, and municipal bonds must have a capital of
$100,000. Married women and minors may transact business with
such banks. Are required to have license and are examined by the
bank examiner. Provisions are made for the contents of the charter.
B ills an d N otes. The negotiable instrument code adopted by the
American Bar Association Is In force. Joint obligor may be released
without releasing others. (See Holdings.)
tt
Any standard surety company, organized under laws of
United, States or of any state, may execute bonds In judicial proceed­
ings within the state when they have complied with license laws.
(See Guaranty Companies.)
C hattel M o rtg a g e . To be valid against others than the parties
thereto, chattel mortgage must set out the residence or the mortgagor
and the mortgagee, the rate of interest to be paid and time and place of
payment of the debt secured, and be accompanied by the affidavit of
both mortgagor and mortgagee that the mortgage is bona fide and
made without design to defraud or delay creditors. Immediate
delivery of the mortgaged property must be made to thn mortgagee
and the change of possession must be actual and continued, unless the
mortgage or a true oopy thereof shall be forthwith deposited and ¿led
in the office of the recorder of the county where the property shall
then be situated. Removal sale, or other disposition of mortgaged
property without consent o f mortgagee entitles mortgagee to Imme­
diate possession of it, and such removal, transfer, or sale, or subsequent
encumbrance is felony. If mortgagee permits mortgaged property to
bo removed to another county, he shall within one month record his
mortgage in such other county. Chattel mortgage may be fore­
closed in justice court If amount of debt does not; exceed $300; other
wise in district court. Mortgagee may obtain possession of property
on default and sell after notice which must be served on owner. Upon
stock of goods, wares, and merchandise with continued possession in
mortgagor, void. If copy is filed with recorder, original must be
acknowledged, and copy certified to by county recorder.
C laim arrd D e liv e ry . .(See Replevin.)
C ollaterals. No statutory provisions— common law prevails.
C o m m u n ity P ro p e rty . (See Conveyances.)
C o n d itio n a l Sales. Where title remains in vendor until purchase
price is paid, void as to persons not parties thereto, and persons
without notice, unless subscribed, acknowledged, and filed with
oounty recorder.
C o n tra cts. (See Bills and Notes.) One or more obligors on a
joint or joint and several instrument may be released without releasing
the Others, and may*be sued separately under certain conditions with­
out releasing the others. Married women may contract as if sole.
C o n v e y a n ce s. Conveyances ol estate In lands for term more than
one year shall be by Instrument In writing subscribed by party making
it, or his agent, duly authorized thereto by writing. A conveyance Is
not effectual against creditors or bona fide purchasers unless recorded
in recorder’s office in county where land is situate. A conveyance
purporting to convey a greater estate than the grantor has passes only
the estate that he actually has. A general grant or devise passes the
fee unless expressly lim it«! to a less estate. All deeds to realty must
be signed by both husband and wife except as to unpatented mining
claims. Deeds must be signed and must be acknowledged before
some officer authorized to take acknowledgment, and properly cer­
tified by him to entitle same to registration. The use o f the word
“ grant” or “ convey” implies the following covenants and none
other: 1. That previous to the time o f the execution o f the con­
veyance the grantor has not conveyed the same estate, or any right,
title or interest therein, to any person other than the grantee. 2.
That such estate is at the time o f the execution o f such conveyance
free from incumbrances. Married women seventeen years o f age
and upward may convey their own lands without being joined by
their husbands. (See Acknowledgment, Dower, Husband and Wife,
Homestead.)
C o rp o ra tio n C o m m issio n , organized under Chapter 90, First
Session, Laws 1912. Has general supervision o f corporations.
C orp oration s in G eneral. A ny number o f persons may become
incorporated for the transaction o f any lawful business. Before com­
mencing any business, they must adopt articles o f incorporation
which shall be signed and acknowledged by them as deeds and be
filed'in the office o f the Corporation , commission at the State Capital
and a certified copy thereof filed in the office o f the County Recorder,
in each county in the state in which they transact business. The
articles o f incorporation must contain: 1. The name o f corpo­
rators, and its principal place o f transacting business. 2. The general
nature of the business proposed to be transacted. 3. The amount of
capital stock authorized and the times when and conditions upon
which It is to be paid in. 4. The time o f the commencement and
termination of the corporation. 5. B y what officers or persons the
affairs of the corporation are to be conducted, and the times at which
they are to be elected. 6. The highest amount of indebtedness or
liability to which the corporation Is at any time to subject itself,which
must not exceed two-thirds of its capital stock. 7. Whether private
property is to be exempt from corporate debts. Unless so exempted
stockholders are liable for the debts of the corporation in the pro­
portion which their stock bears to the whole capital stock. Must
be published for six days in some newspaper in the county where
the principal business is located. Proof of publication must be filed
with the Corporation Commission. Corporations to endure for
twenty-five years. Corporation must file in office o f Corporation Com­
mission an appointment o f agent who is a bona fide resident o f this
state for three years prior thereto, on whom all notices and process,
Including summons, may be served and constitutes personal service.
Charges for incorporation: Recorder’s fees, 20 cents folio. Recorder’s
fees, certified copy, 20 cents folio. Recorder’s fees certificate to copy,
75 cents. Corporation Commission’s fees, filing cost copy, $10.
Printers’ fees per inch, publishing articles six days, 80 cents. Corpora­
tion Commission’s fees, filing proof, publishing $3.00. Corporation
Commission’s fees, filing appointment o f agent, $5.00. Where charter
provides assessments may be levied on shares to par value (1907),
C o rp o ra tio n s, F o re ig n . Before it can transact business it must
file certified copy of Articles with Corporation Commission and
county recorder In county of principal place of business, also an
appointment of agent upon whom a service personal to the corporation
may be made.
C orp ora tion s, in s u ra n ce . May be organized under provision
peculiarly applicable to insurance companies.
C o rp o ra tio n s, R a ilroa d .
Are organized under a statute espe­
cially providing for them.
C o rp o ra tio n s, S avin gs a n d L o a n . (See Banks and Banking.)
C o rp o ra tio n S to ck . T ra n sfer o f. Transfer of stock shall not be
valid, except as between the parties thereto, until the same Is regularly
entered upon the books of the company, so as to show the names of the
person by whom and to whom the transfer is made; the number o l their
designation of the shares, and the date o f the transfer.
C osts. Plaintiffs who are non-residents, or those who own no
property upon which execution may be levied, are required to give
security for, within ten days after order made; bonds for, must
authorize judgment to be entered against sureties.


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C ou rts. Are the Supreme Court o f the State, the U. S. district court
for the District o f Arizona; one superior court for each Countv exeunt
in counties having over certain population in which event two s’uDerinr
courts, justices o f the peace, police courts, recorders o f cities Th«
superior court o f the several counties is a court o f general jurisdiction
both civil and criminal. It has both original and appellate jurisdiction
Its original jurisdiction extends to all civil cases where the amoiini
involved exceeds $200 exclusive o f interest, and in all cases involving
the title to or possession o f real estate. Justice courts have general
jurisdiction when amount in controversy does not exceed $200 00
except when title to real estate is involved. (See Jurisdiction.)
’
C reditors’ B ills. No statutory provisions.
D ays o f G ra c«. None.
D ep osition s. M ay now be taken either upon oral examination
and cross-examination or upon written interrogatories and cross
interrogatories, as is generally provided.
D escen t an d D istrib u tio n . (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, sh»ii
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' It
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 bom , 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.)
D ow er. Dower is abolished.
E v id en ce. The common law rules have not been codified. Partie»
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. Certi­
fied copies of records of all notaries may be read. Court may order
Inspection or copy of documents.
E xecu tion s. Upon a judgment o f superior court, executions may
be issued to any county. Lien of dates from levy, and if on real prop­
erty, 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 suit brought to determine the denial oi
owning or of having property.
E x em p tion s. Every person who is the head of a family, and
whose family resides within this state, may hold as a homestead,
exempt from attachment, execution1and forced sale, real property
to be selected by him or her, which homestead shall be in one com­
pact body, not to exceed in value four thousand dollars, upon filing
affidavit designating such homestead in the Office o f the County
Recorder on county where property is situated. Such homestead
exempt from daté o f filing said affidavit, The following property
shall be exempt from execution, attachment and sale on any process
issued from any court: 1. The family bible. 2. A seat or pew in
any house or place o f public worship. 3. A lot in any burial ground.
4. Necessary household, table and kitchen furniture, including viz:
5. T be tools or implements o f a mechanic or artisan necessary to
carry on his trade; etc. 6. The sewing machine and implements
o f a seamstress actually used in pursuing her vocation. 7. One
watch, one sewing machine, one typewriting machine, and one bi­
cycle.
7a. Five milch cows. 8. The camping outfit of every
prospector in this state, including his mining tools, saddles and burros.
9. The farming utensils and implements of husbandry o f the debtor,
etc. 10. Poultry not exceeding in value twenty-five dollars. 11.
Two horses and two mules and their harness; one cart or wagon;
one dray or truck; one coupe; one hack or carriage for one or two
horses or one automobile by the use o f which a carman, drayman,
truckman, huckster, hackman, teamster, chauffer, or other laborer
habitually earns his living, and one horse with vehicle or harness or
other equipment used by a surgeon, physician, constable or clergyman
in the legitimate practice o f his profession, with food for such horses
or mules for one month. 12. Fuel necessary for the use of the
debtor and his family for the period’ of six months. 13. The presses,
stones, type, cases and other tools and implements used by any
person or copartnership in printing or publishing a newspaper or in
conducting any printing establishment or by any person hired to use
them; not exceeding two thousand dollars in value; together with
stock in trade not exceeding four hundred doUars in value. 14. The
library and philosophical and chemical or other apparatus belonging
to and used for the instruction o f youth in any university,, college,
seminary o f learning or school. 15. All moneys received by or
payable to a surviving wife or child upon the life of a deceased husband
or father, not exceeding ten thousand dollars. 16. All moneys
arising from fire or otner insurance upon any property exempt from
sale on execution. '17. All moneys, relief, or other beneàts payable
to or to be rendered by any police department association, fire
department association, beneficiary association, or fraternal benefit
association, and any person entitled to assistance therefrom, or to
any certificate holder thereof or beneficiary under such certificate.
18. Any claim for damages recoverable by any person by reason
o f any levy upon or sale under execution o f his exempt personal
property or by reason of the wrongful taking or detention of such
property by any person, and any judgment recovered for such
damages. 19. The earnings o f the minor child o f any debtor or
the proceeds thereof by reason of any liability o f such debtor not
contracted for the special benefit o f such minor child. 20. One
half o f the earnings of the wages or salary of any person for his per­
sonal services rendered at any time within thirty days next pre­
ceding the levy o f attachment, garnishment or execution when/it
appears by the affidavit o f the debtor or otherwise that such earnings
are necessary for the use o f the family residing in this state, supported
in whole or in part by him. 21. All arms, uniforms and accoutre­
ments required by law to be kept by any person, and also one gun
to be selected by the debtor. 22. All fire engines.. . . . .o f any fire
department. 23. All courthouses, jails, etc. The property de­
clared to be exempt by this chapter shall not be exempt from at­
tachment or sale in any action brought or judgment recovered for
the purchase price o f such property so long as such property remains
in the possession o f the original purchaser. (See Homestead,Liens.)
F rauds ah d F ra u d u len t C on v ey a n ces. 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 performed within the space of one year after the making

BANKING AND COMMERCIAL L A W S — ARIZONA
mereol Every gift, conveyance, or assignment, or transfer, or
iharee upon any estate, real or personal; any suit commenced on
Sarree judgment, or executions suffered or obtained, or any bond
nr other writing given with Intent to delay, hinder, or defraud credit­
ors purchasers or other persons, shall to such persons be void. All
harsains, sales, and other conveyances of lands, tenements, and here­
ditaments, deeds of settlement of marriage, deeds of trust, and morttases 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 Judg­
ment creditor may be an Innocent purchaser.. Every gift, convey­
ance assignment, transfer or charge made by a debtor which Is not
noon consideration deemed valuable in law shall be void as to prior
creditors, if debtor had not then other property in the State suffi­
cient to pay all his indebtedness. Not on that account, however,
void as to subsequent creditors. No gift of any goods and chattels
shall be valid unless duly acknowledged, or proven and recorded, or
br will, or unless actual possession shall have come to and remained
with the donor or some one claiming under him. Fraudulent intent
isa question of fact and not of law. . 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 o f
like significance or Import, and shall fail to disclose the name of his
principal, or partner, or other person who may be interested in Such
business by a sign in letters easy to read, placed conspicuously at the
place where such business is transacted, or if any person shall transact
business in his own name, without any such addition, all the property,
stock, money and choses In action used or acquired in such business
except such property as may be exempt from execution, shall, as to
the creditors of any such person, be liable for his debts, and be, in all
respects, treated in favor of his creditors as his property. Criminal
prosecution for fraud is provided. (See Conditional Sale.)
Garnishm ent. Writ may issue; 1. Where writ of attachment
has issued. 2. Upon affidavit that the debt is just due, and unpaid,
and that defendant has not, within affiant’s knowledge, property In
his possession subject to execution sufficient to satisfy such debt, and
that the writ is not sued out to injure either the defendant or garnishee.
3. Upon judgment, when affiant makes affidavit that the defendant
has not, within his knowledge, property In his possession within this
Territory sufficient to satisfy said judgment. Proceedings under sub­
division 2 requires a bond in double the amount of the debt, condi­
tioned 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 Judg­
ment rendered as if In an Independent proceeding. (See Attachment.)
Holidays. Legal holidays are January 1, February 14, February
22, July 4, October 12, Thanksgiving, M ay 30, December 25, Arbor
day, Labor Day, every Sunday and general state 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 o f exchange, acceptance, or other negotiable in­
strument, 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 14, February 22, July
4, October 12, December 25, or M ay 30, and Arbor Day, shall fall
upon Sunday, then the M onday following shall be considered as a
legal holiday. Writs o f injunctions, attachments, replevin, and
prohibition may be issued and served on.
Homestead. Deed to. must be signed by husband and wife. (See
Exemptions.)
Husband an d W ife. All property, both real and personal, of
the husband or wife, owned or claimed by him or her before mar­
riage, and that acquired afterward by gift, devise, or descent, as also
the increase, rents. Issues, and profits of the same, shall be his or her
aeparatc 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 ltvea 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 o f twenty-one years and upwards, except the right to make
contracts binding the common property o f the husband and wife; and
shall be subject to the same legal liabilities. (See Dower, Convey­
ance.)
Injun ction. Is Issued, where .party is entitled to relief and
restraint, is required of some prejudicial act; where, pending litiga­
tion, 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
•uch judgment.
Injuries— P ersonal. Employer’s Liability and Compulsory Com­
pensation laws in force.
Insurance. (See special chapter pertaining to Insurance.)
Interest. May contract, in writing, for any rate of, not exceeding
10 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.
Judgm ents. Judgments of superior courts become alien upon all
real estate of judgment debtor in the county as soon as entered and
docketed. Upon filing with the clerk o f the superior court a transcript
of Judgment from justice court or of superior 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
»uch judgment be revived by scire facias or action for debt be brought
thereon within such five years.
Judicial B on d s. (See Bonds.)
Levy, (Sea Executions.)
Licenses. For gambling prohibited.
Liens. AH persons who may labor or furnish materials in the con­
struction or repairing of any building, superstructure, canals, dams,
Mines, or other Improvement, or cuts co-rdwood, shall have a lien 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 fur­
nishing 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
“ Silvered 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
*uch as lien claimant had no notice. Suit to foreclose such liens must


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Federal Reserve Bank of St. Louis

1577

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
8200, upon filing notice of claim unpaid with creditor, debtor, and
officer executing writ. Proprietors of hotels, boarding houses, 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.)
L im ita tion s. To recover realty against person in peaceable and
adverse possession under color of title, three years; against such posses­
sion where person pays taxes and has deed recorded, five years, other­
wise ten years: to recover lots in city or village against person having
recorded deed, and pays taxes, five years; where party in possession
claims by right of possession only, two years. Personal Actions—
One year; Personal Injuries, malicious prosecution, false Imprison­
ment, libel, slander, seduction, breach o f promise. Actions for relief
on the ground of fraud; must be brought within one year from dis­
covery of fraud. Tw o 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 o f death. Three years; Actions for debt not in
writing; on stated or open accounts other than mutual between mer­
chants 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 o f partnership
accounts; on mutual or current accounts between merchants, their
factors or agents, to accrue from cessation o f dealings; upon judgment
or instrument without the Territory; bonds of executors, adminis­
trators, or guardian, after death, removal, etc,; specific performance;
to contest will after discovery o f fraud; and where no provision is
otherwise made. Five years: On domestic judgment where execution
has been issued within one year after rendition. Six years; debt
evidenced by writing within the state.
M ines unpatented are real estate lor the purpose ol Inheritance and
conveyance. Location requires seven monuments, three at each end,
and one at discovery, in which notice Is to be placed on discovery:
title work consisting of a shaft 4 x 6 x 8 feet deep, or its equivalent
In an open cut so that mineral in place is discovered 8 feet from the
surface must be done and notice recorded within three months, and
annual assessment work amounting to $100, maintained each year
thereafter, until patent Is ordered.
M in ors. (See Savings Banks.) ,
M ortg a g es. Mortgage may contain power of sale. Whether It
does or not, mortgage may be foreclosed by suit in superior court.
Failure of mortgagee to lawfully release a satisfied mortgage for seven
days after demand for the release, subjects him to liability for $100
and actual damages.
Mortgages on real estate are executed, ac­
knowledged, and recorded as conveyances of real estate. (See Con­
veyances. Chattel Mortgage, Acknowledgments. Redemption.)
¡Notary P u b lic. In all certificates and acknowledgments the date
of expiration of commission must be stated, as "commission expires— ”
No certificate of. holding office, etc., is required when notary acts In
foreign state or country.
Note's an d B ills o f E x ch a n g e. (See Bills and Notes.)
P artnerships using fictitious name may file certificate showing
names of partners with county recorders. Foreign partnerships may
do so.
Pow ers o f A tto r n e y . No special statutory provisions relative to.
To confess Judgment must be executed subsequent to maturity of debt
confessed, and must be acknowledged. To convey lands or release
mortgages should be acknowledged as deeds, and recorded.
P rob ate L aw . (See Savings flanks and Administration of Estates.)
P rotest. Liability o f drawer or indorser of bill or note may be
fixed by regular protest and notice, etc., according to the usages and
custom of merchants. (See Bills and Notes.)
R ecord s. The superior courts o f each county are courts o f record.
The recorder’s office in each county relates to titles o f real estate
and personal property, and probate record instrument therein Is
notice. The minutes of the Sanitary Live Stock Board are notice of
all brands and marks of live stock.
R ed em p tion s. From sheriff or judicial sales, six months, by
debtors or successors In Interest; any lien holder may redeem within
three months thereafter by serving and filing statutory notice, by
serving notice in five days after end of said six months. The same rule
applies to foreclosure of mortgages and trust deeds whether by court
,«r under powers of sale.
R ep lev in . For possession of specific personal property which has
not been seized under any process, execution or attachment against
j the property of the plaintiff.
Sales. The ‘ ‘uniform sales law” Is In foroe.
Seals. Addition or omission of seals or scrolls to Instruments of
writing in no way affect the force and validity of the Instrument.
•Instruments executed by corporations must have a corporate seal
attached.
S ervice. A ll summons upon persons shall be personal, or by leaving
a copy with copy of complaint at the usual place, of residence of ■
defendant, with a member of his family over the age of sixteen years;
against incorporated city, or town, or village; upon major, clerk,
secretary, or treasure: against incorporation or joint stock associa­
tion, upon president, secretary, or treasurer, director or local agent
representing company, or by leaving a copy of summons and com­
plaint at the principal office during office hours; upon any railroad,
telegraph, or express company, or any agent of such company who
resides in or may be found in the county where suit is brought; upon
domestic corporation by serving on statutory resident agent, and where
there is no officer upon whom service can be made in the State, ser­
vice may be had by delivering duplicate copies of summons and com­
plaint to the secretary o f the Corporation Commission, and upon
foreign corporation by delivery to statutory agent. Personal service
of summons may also be had by serving upon defendant by registered
mail,' as provided in statutes.
Suits. (See Actions.)
T axes. Aside from those levied by legislative enactment for
specific purposes, as for the construction and maintenance of public
institutions, etc.. State taxes are levied by the State Board o f Equal­
ization; county taxes by the boards of supervisors of the several
counties, and city taxes by the common councils o f the various cities.
Railroads are valued for the purpose of taxation by the State Board
of Equalization. Other property js valued b y county assessors.
The assessing of value begins in February of each year. Taxes
are levied on the third M onday o f August in each year. The lien
attaches on the first M onday o f February in each year. Taxes
become due not later than the third Monday In September, and
become delinquent If not paid on the third Monday of December.
The penalty for delinquency Is 5 per cent. Within 60 days after
delinquency action may be commenced in district court to foreclose
delinquent real estate tax liens, and property sold as under execution.
Personal property tax is collected by distress warrant. Taxes after
delinquency draw interest at one per cent per month after action

157$

BANKING AND COMMERCIAL L A W S — ARKANSAS

commenced to foreclose tax nen penalty p i twenty-five per cent is
added. There is doubt about the right to redeem from tax sales.
W areh ou ses. Personal property in, may be sold for unpaid
charges.
T ra n sfer o f C o rp o ra tio n S to ck s. (See Corporations.)
W ills. Wills must be in writing, signed by the testator, or b y some*
one for him, in his presence and by his direction, and must be attested
by two or more credible witnesses above the age of fourteen years, in
the presence of each other and the testator. When the will Is. wholly
written by the testator, no witnesses are necessary. Nun-cupatlve
wills may be made when property willed does not exceed in value
*50, unless it be proved by three credible witnesses that the testator
called on some person to take notice and bear testimony that such is
his wUl, and that the testimony, or the substance thereof, was com­
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
subsequent will, codicil, or declaration in writing, executed with like
formalities as in execution of will, or by testator destroying, canceling,
or obliterating the same, or causing it to be done in his presence, or
by subsequent marriage, and no provision is made for wife. Foreign
wills, the probate whereof is duly authenticated, may be probated
here. Contests of wills can not be initiated after one year from date
of probating.

SYNOPSIS OF

THE LAW S' OF ARKANSAS
RELATIN G TO

BANKING AND COMMERCIAL USAGES.
Revised b y M

& E m e r s o n , Attorneys at Law, Little Rock.
(See Card in Attorneys’ List.)

a n n in g

A c co u n ts verified by the plaintiff as Just and correct prove them­
selves in suits thereon unless denied under oath.
A c k n o w le d g m e n ts may be taken within the State before the
supreme or circuit court, or a Judge thereof, or clerk of any court of
record, or a Justice of the peace or notary public; elsewhere in the
United States before any court having a seal, or clerk of such court,
notary public, mayor having a seal, or commissioner of Arkansas;
without the United States before any court having a seal, mayor of a
city having a seal. United States consul, or any officer authorized by
the laws of such country to probate conveyances of real estate, pro­
vided he has a seal.
A c tio n s. Suits are prosecuted under a reformed code of civil pro­
cedure differing from the New York code chiefly in maintaining the
distinction between law and equity.
A d m in is tra tio n o f E states. Executors and administrators must
be residents of the State and must give bond in double the value of the
property. Foreign executory and administrators can maintain actions
in our courts. Claims are paid in the following order: First, funeral
expenses; second, expenses or last illness; third. Judgments which are
liens on the lands of the deceased; fourth, demands presented within
•lx months; fifth, demands presented within one year. All demands
not'presented in one year are barred. Demands must be authenticated
by an affidavit to the effect that nothing has been paid or delivered
toward their satisfaction except what Is credited thereon, and that
the sum demanded, naming it, is Justly due. Demands must first be
presented to the executor or administrator, and if disallowed by him
may be presented to the probate court, or sued upon in any court of
competent jurisdiction. Notes and debts secured by mortgages or
deeds o f trust must be probated as any other claim, and if not pre­
sented to the executor or administrator within one year after ap­
pointment, are barred by the statute of non-claim of one year.
When the note or debt is barred this carries with it a barring of the
mortgage or deed of trust given to secure the notes or debts.”
A ffidavits in this State are made before a judge, justice of the peace,
notary public, or clerk of the court; without the State before a judge,
mayor, notary public. Justice of the peace or commissioner for this
State.
A liens may hold and transmit property in all respects as residents.
A rb itra tio n . Controversies may be submitted to arbitration, and
she award of the arbitrators is filed in court, and is subject to review
on equitable principles only, and not for matters o f form. When not
set aside they are entered of record and become the judgment or decree
of the court.
A rrest. Defendants may be arrested for debt only when the
plaintiff files an affidavit charging that the debt was fraudulently con­
tracted; that it is just, giving its amount, and that he believes that the
defendant is about to depart from the State, and, with Intent to de­
fraud his creditors, has concealed or removed from the State his
property or so much thereof that the process of the court after judg­
ment can not be executed; or that the defendant has money or securi­
ties in the possession of himself or of others for his use, and is about
to depart from the State not leaving sufficient property therein to
satisfy the plaintiff’s claim. Bond must be given conditioned to pay
the defendant all damages that he may sustain if wrongfully arrested.
A ssig n m e n ts fo r th e B en efit o f C reditors may be general or
partial, with or without preferences, and where all the debtor’s prop­
erty is conveyed, may exact releases as a condition of preference. The
assignee must file an inventory o f the property assigned and give a
bond conditioned that he will execute the trust confided to him, sell
the property to the best advantage and pay the proceeds to the credi­
tors mentioned in the assignment according to its terms, and faithfully
perform his duties according to law. He must sell within 120 days
all property except the choses in action.which he is required to collect,
the sale to be at public auction after thirty days’ notice. Assignments
are vitiated by the fraud of the assignor alone or by any provision
varying from the requirements of the statute. Attacks upon them
are made by proceedings in equity, and, if they are set aside, the
proceeds are distributee) equally among all the creditors. Assignees
close up their accounts under the direction of the chancery courts.
Corporations can not prefer creditors.


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Federal Reserve Bank of St. Louis

A tta c h m e n ts may be sued out where the defendant is a forpim,
corporation or non-resident, or has been absent from the S t a t « ? ^
months, or has left the State with Intent to defraud his credhnri0^
has left the county of his residence to avoid the service of summoT,/
or conceals himself so that summons can not be served on
about to remove or has removed a material part of his property L t
of the State, not leaving enough to satisfy his creditors, or has ««in*
conveyed or otherwise disposed of his property, or suffered it to hi
sold with the fraudulent intent to cheat, hinder, or delay his credit«™
Or is about so to do. It is obtained by filing an affidavit s ta tw
nature of the plaintiff’s claim, that It Is Just, its am ountandtheorist!
ence of the ground, and by giving bond conditioned to pay all damaw«
the defendant may sustain If the attachment is wrongfully sued out
The defendant is allowed to traverse the attachment, and the affidavit
and traverse then stand as pleadings upon which the issue istrted
If the attachment is dissolved, the defendant may have an assessment
of damages upon the bond in the same suit. Persons claiming th.
attached property may interplead in the same action. Attachment
may be sued out before the debt is due where the defendant has «iX?
otherwise disposed of his property, or permitted it to be
sold with the fraudulent Intent to cheat, hinder or delay his creditors
or is so to do. or is about to remove his property, or a material part
thereof, out of the State with the intent of cheating, hindering or del«v
ing his creditors.
ciay
i-s f
a —
u n s .
°
qu&mess is controlled oy a state bank department under the direction o f a bank commissioner. A n y fiv e or more
persons, the majority o f whom must be residents o f this state mav
apply to the commissioner to be incorporated and the shares of capital
stock shall be not less than $25 nor more than $100 each; application
may also be made by an individual or firm and shall then be in such
form as the commissioner may prescribe and such individual or firm
shall adopt a name which will show that it is not incorporated- all
property owned by such bank shall be held in the name of the bank
and not in the name o f the individuals composing the firm and all
assets o f any such private bank are exempt from execution bv anv
creditor o f such individual or firm until all liabilities o f the bank have
been paid; upon the death o f an individual banker his widow is not
endowed o f any property o f the bank except such as remains after the
payment o f all depositors and other creditors.
N o corporation, firm or individual may do a banking business until
a fee o f one-fifth o f one per cent on the authorized capital stock shall
have been paid to the bank commissioner. Fees at the same rate
must be paid on each increase o f the capital stock and for each amend­
ment or supplement to the articles o f agreement, except for an increase
o f capital stock, there shall be paid an additional fee o f $10. There
is also due the commissioner an annual fee o f $15 in addition to a pay­
ment o f fifty cents on each $1,000 o f the bank’s capital stock.
The fully paid-up capital stock o f any bank organized after the pas­
sage o f the banking act (March, 1913) cannot be less than $10,000 in
cities having less than 2,500 inhabitants, not less than $20,000 in cities
having more than 2,500 and less than 5,000i nhabitants, not less than
$25,000 in cities more than 5,000 and less than 10,000 inhabitants
andnotless than $50,000 in cities having more than 10,000 inhabitants.
The banking act does not apply to trust companies whose m in imum
capital stock is $50,000.
The affairs o f an incorporated bank are controlled by a board of
directors chosen from the stockholders; each director must be the
owner o f not less than $500 worth o f stock, par value, fully paid-up and
not hypothecated; every bank must have on hand, at all times as a
reserve as much as 15 per cent o f the aggregate o f its deposits.
Stockholders are liable for the debts o f the bank in the sum of the
par value o f their stock in addition to the amount invested in such
stock. (Act No. 113, Acts o f 1913, page 462).

, B ills.
E xchange an d P rom issory N otes. The Negotiable
instruments Law went into effect on April 22, 1913.
No person can be charged as an acceptor of any bill of exchange
unless his acceptance shall be in writing. If the acceptance is
written on another paper than the bill, it shall not bind the
acceptor except in favor of the person to whom such accent*
ance shall have been shown, and who, on the faith thereof,
shall have received the bill for a valuable consideration. Every
holder of a bill presenting it for acceptance may require an
acceptance on the bill; otherwise the bill can be protested for
non-acceptance. Notwithstanding the above provisions any one
promising to accept a bill is liable to any person to whom a promise to
accept it may have been made; and wno. on the faith of the promise,
has drawn and negotiated the bill. Any person on whom a bill is
drawn, and to whom the same may be delivered for acceptance, who
shall destroy it or refuse within twenty-four hours or such time as the
holder may allow to return the bill accepted or not accepted to the
holder, shall be deemed to have accepted the same. When the bills
become due on any holiday, they are payable the next succeeding busi­
ness day. Instruments falling due (or becoming payable on) Satur­
day are to be presented for payment on the next succeeding business
day; except that instruments payable on demand may be presented
for payment before 12 o'clock on Saturday if it is not a holiday. The fol­
lowing damages are allowed where a bill is protested for non-acceptance
or non-payment: I f the bill is drawn on any place in this State, 2 per
cent; if payable in the states o f 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 o f the United States, 10 per
cent. I f the bill be drawn by any person at any place within this State,
at the rate o f 2 per cent; if drawn by any person at any place without
this State, but within the limits o f the United States, 6 per cent; if
drawn by any person without the limits o f the United States, 10 per
cent. The holder o f any bill protested for non-payment or non-accept­
ance is entitled to costs o f protest and interest at the rate o f 10 per cent
per annum on the amount of the bill from date o f protest. The term
Bill of Exchange includes all arafts or orders drawn by one person on
another for the payment of a sum of money specified therein. Bills
and notes given for patented machines, implements, substance, or
instruments of any kind, given to any,citizen of this State, are not
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.
B ills o f L a d in g . (See Warehouse Receipts and Bills of Lading.)
C ollaterals are governed by the law merchant.
C on tra cts touching commercial matters are governed by the law
merchant.
C on v ey a n ces may be either witnessed b y two witnesses or a<£
knowledged. (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

BANKING AND COMMERCIAL L A W S — ARKANSAS
oower of attorney and make executory contracts ot sale. Deeds
«hich have been recorded and are property acknowledged prove themtelves. Any substantial departure from the form of acknowledgments
-rescribed by the statute, such as the omission of the words “ con*
«¡deration” or “ purposes,” makes the acknowledgment and record
void: but statutes have been passed from time to time curing defec­
tive acknowledgments previously made. Such a statute was passed
In 1907. A new Curative A ct was passed and approved Febru­
ary 10. 1911.
Corporations are organized only under general incorporation laws.
Business corporations must consist of not less than three persons who
•hall elect a board o f 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 comnan? within the State. The articles of association must be signed by
the president and a majority of the directors, and must be accom­
panied by a certificate signed in a like manner and sworn to by the
president and a majority o f the directors, setting forth the purpose of
the corporation, the amount ot Its capital stock, the amount actually
paid in, tne 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 tne 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 trans­
feror. The corporation has a lien on its stock for debts due from the
»tockholders. 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 direc­
tors declare a dividend when the corporation is insolvent they become
liable for all the corporate debts. Any corporation which is Insolvent
or has ceased to do business may be wound up on the suit of any
creditor or stockholder by a decree of the chancery court. Prefer­
ences 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: One-fifteenth o f one
per cent each year upon the proportion o f the outstanding capital
stock of the corporation represented by property owned and used in
business transacted in this state.
Every corporation doing business for profit and organized as a
mutual life, fire, accident, surety, health or other insurance company
not having a capital stock and not organized for charitable purposes
shall pay an annual tax o f $100.00.
All foreign or domestic insurance companies, o f whatsoever nature,
doing business in this state and having an outstanding capital stock
of less than $500,000 shall pay an annual tax o f $100; and such com­
panies having a capital stock o f $500,000 or more an annual tax o f
$200, this tax being in lieu o f the tax on the capital as provided in
other cases.
Every Investment company, foreign or domestic, except National
banks and corporations not organized for profit, incorporated or unin­
corporated, which shall sell or negotiate the sale o f any stocks, con­
tracts, bonds or other securities o f any kind or character other than
bonds of the United States, or o f some municipality authorized to
issue bonds o f the State, and notes secured by mortgages on real
estate located in the State, or sell building stock or loan investments'
shall file in the office o f the Bank Commissioner, together with a fee
of $5.00, in addition to the fees required o f all incorporations, the
following documents: A statement showing in detail the plan upon
which it proposes to transact business; a copy o f all contracts, bonds
or other instruments which it proposes to make with or sell to its
contributors; a statement showing name and location o f company
and an itemized account o f its actual financial condition and any other
such information which the Bank Commissioner may require; If
such company be a co-partnership or unincorporated association, it
shall also file a copy o f its articles o f co-partnership or association and
all other papers pertaining to its organization; ir it be an Arkansas
corporation it shall file a copy o f its articles o f incorporation, con­
stitution and by-laws and all other papers pertaining to its organiza­
tion; if it be organized under the laws o f any other state or territory
or government, incorporated or unincorporated, it shall file a copy o f
the laws of such state or government under which it exists or is incor­
porated, and also a copy o f its charter, articles o f incorporation,
constitution and by-laws and other papers pertaining to its organi­
zation.
The Bank Commissioner shall examine all such papers and may
admit or reject such company in his discretion; a company rejected,
or whose right to do business is revoked by the Bank Commissioner,
may, within twenty days, appeal to the chancery court o f any county
in the state where its principal office is located or principal agent resides
If it be found that the refusal or revocation was justified, the cost
shall be paid by the company; otherwise by the state as provided by
statute.
Any individual or persons, co-partnerships, corporation, companies
or association, domestic or foreign, which shall sell any building or
Investment contracts or like securities on which payments are to be
made from time to time, shall first enter into a bond with the State o f
Arkansas in the sum o f $20,000 for the faithful performance o f its
contract.
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 certiucate shall state the principal place of business of the corporation;
and service on the agent shall bind it. The corporation must also file
a certified copy of its charter together with a statement of its assets
and liabilities, and the amount of its capital employed in this state
in the office of the secretary of State, and in the office of the county
where it opens an office, and must pay same fees as are required of
home corporations. It must also file a resolution of its board of
directors consenting that service of 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
fight to do business is revoked. Doing business here without compli­
ance with the law subjects the corporation to a fine o f not less than
51,000. These requirements do not apply to railroad or telegraph
companies that had built lines in the State prior to Feb. 16, 1899. If
any corporation fails to appoint an agent, service of process on the
auditor of State shall bind it. No foreign corporation can sue on any
contract made in this State until these provisions are complied with.
Courts. The supreme court is held at Little R ock and has juris­
diction of appeals from the circuit and chancery courts. In all coun­
ties separate courts of chancery have been established. The estates
d* deceased persons are entrusted exclusively to the probate courts,
with right of appeal to the circuit and thence to the supreme court,
waims against counties are heard by the county court, as also matters
touching paupers and the like
The justices' courts have jurisdiction
oi matters of contract not exceeding $300, and matters of tort not
exceeding $100, Two terms of the circuit and chancery court and
tour of the county and probate courts ,are held in each county per year.
Deeds. (See Acknowledgments and Conveyances.)
Depositions may be taken In the State before any judge or clerk of
® doort of record, justice of the peace, mayor, or notary public; out
oi the State before a commissioner for thisjState, judge, justice of the


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1579

mayor, notary public, or person commissioned by the court or
Eeace,
y consent of parties.
D escen ts an d D istrib u tion s. 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 default of heirs the whole property goes to husband
or wife, and in their default to the State. If the estate is ancestral it
goes to the blood of the ancestor from whom it was derived. Rela­
tions of the half-blood inherit equally. Heirs take as tenants in
common.
D ow er. Where there are children the wife takes one-third of the
husband’s personal estate absolutely and one-third of the real estate
ot which he was seized at any time during the marriage, for life. Where
there are no children she takes In a new acquisition one-half of the real
and personal estate absolutely as against heirs, or one-third absolutely
as against creditors. If it is an ancestral estate, she takes one-half for
life against heirs and one-third for life against creditors
E x ecu tion s from the circùit court are returnable' in sixty days,
those from Justices’ courts within thirty. They may be stayed for
six months by giving bond. They are a lien on the property of the
defendant In the county from the time they come to the officer’s
hands. The officer before levying on personal property, the title
to which is doubtful, may require the plaintiff to give him an indem­
nifying bond, and then suit must be brought by the claimant upon
the bond. Thè defendant and other judgment creditors have one year.
In which to redeem from the sale of ireal 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 sur­
render of concealed property by imprisonment.
E x e m p tio n s. Unmarried persons are entitled to $200 and married
persons and heads of families to $500 in selected articles of personal
property as exempt against debts by contract. Persons who are
married or heads of families are entitled to a homestead as against all
debts, except the purchase-money, specific liens, laborers’ and mechan­
ics' liens, taxes and claims for trust funds converted. The homestead
iff the country is not to exceed 160 acres, and in town not to exceed
one acre, nor to be worth more than $2,500, but the country home­
stead is not to be reduced to less than 80 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 wile joins and
which is acknowledged by her, and if the husband neglects to claim
the homestead the wife may do so.
/ F raud . The English statute of fraudulent conveyances has been
re-enacted in this State.
G a rn ish m en ts may be sued out pending suit upon giving bond in
double the amount garnished, or after judgment without bond.
H olid ays. The following are set apart and designated as legal
holidays: Christmas Day (December 25th); New Y ear’s D ay (Jan­
uary 1st), July Fourth; Thanksgiving D ay (last Thursday in Novemcer); Washington’s birthday (February 22nd); Labor D ay (first
M onday in September) ; General Robt. E. Lee’s birthday (January
19th); All general bi-ennial election days; Birthday, Jefferson Davis,
President of the Confederate States o f America (June 3rd) ; Arbor
D ay (first Saturday in March, a special day). When bills become
due on any of these days, they are payable the next business day_
October 12th is Columbus D ay (a public holiday, but not affecting
commercial paper, or the 'execution o f written instruments; nor
interfering with judicial proceedings).
H u sban d an d W ife. (See Married Women.)
I n ju n c tio n s may be Issued by circuit judges, chancellors, or the
of any court in.which suit Is brought. The person applying
e injunction must give bond as the court or judge may direct.
In solv en cy . The Supreme Court has held that the Federal Bank­
ruptcy A ct has suspended the State insolvency laws.
In terest. 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 usury is charged the borrower may go into equity and have the
debt and securities cancelled without tendering the amount lawfully
due. Judgments bear the same rate of interest as the obligation sued
on. Judgments against counties bear no interest.
J u d g m e n ts (See Interest) are liens upon the real estate of the
debtor in the county where rendered for three years only. The lien
may be renewed and continued for three years by scire facias. Judg­
ments of the United States and other courts can be made liens on lands
in counties other than that where they are rendered b y filing a certified
copy in the office o f the circuit clerk. A judgment survives for ten years.
J u ris d iction . (See Courts.)
L iens. 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 sub­
contractor, shall have for such work or material furnished a lien on
the building or improvement together with the land on which it stands
to the extent of one acre if in the country; if in a city the lot o f land
upon whlcn 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.
L im ita tio n s. Suits for the possession of real estate must be
brought within seven years, saving to minors, married women, and
lunatics three years after their disabilities are removed. Actions for
recovery of lands sold at judicial sales must be brought within five
years, saving to minors and lunatics threè years after removal t©
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
qut 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 dis­
ability 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 suffi­
cient proof to take the case out of the statute.
L im ited P artn erships may consist of one or more general, and one
or more special partners. The latter of whom shall constitute in cash a
specific amount as his share o f 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 pla'ce of busi­
ness, a certificate showing name o f firm, names o f partners, distin­
guishing between general and special, nature o f business, amount
of capital contributed by each partner, period of compiencement aha
termination of partnership. Business to be conducted by general
partners and^ suits brought by or against them.

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BANKING AND COMMERCIAL L A W S — CALIFORNIA

W ills. A will must be subscribed by the testator or by some person
M arried W o m e n . The property, real and personal, of married
for him at his request in the presence of two attesting witnesses, and he
women remains their separate estate as long as they choose, and may
must
acknowledge it to be his will to each of them. He must declare
be devised or conveyed without the husband’s assent, and is not
at the time of his subscription o f acknowledgment to the witnesses
subject to his debts. If she dies without making any disposition of
that
the
instrument Is his will and testament. The witnesses must
her real estate, he is entitled to curtesy. She may carry on any busi­
sign their names at the end of the M il as Mtnesses at the request of
ness or perform any services on her own account, and her earnings are
the testator. If, however, the entire will Is In the hand-writing of the
hers, and she may sue alone in respect of her separate property. She
testator, it need not be attested, but may be proved by three witnesses
can bind herself b y contract only in reference to her separate estate or
familiar M th the hand-writing. Such will, however, can not be
business. She can not enter into parinership with her husband. If she
pleaded in bar of an attested will. Wills are revoked by marriage and
does not file a schedule of her personal property, the burden of proof
birth of issue, unless provision for such issue is made by settlement
is on her to show that it Is hers.
or is provided for In the will. The will of an unmarried woman Is
M in es a n d M in in g . Under control of commissioner of mines.
revoked by her marriage. Afterbom children, not mentioned in the
AH documents relating to mines must be recorded in the recorder’s
will, taue their regular distributive share. If the testator falls to
office of the county; and miners of the county may make by-laws
mention in his will any child, or its legal representatives, living at the
regarding the time, manner, and amount of work necessary to hold
time of executing the will, he shall, as to such child, or its represent­
claims and other rules and regulations not in conflict with law. Exten­
atives. be deemed to have died Intestate, and such child, or its rep­
sive provisions are made for the protection of the health and safety
resentatives, is entitled to Its regular share.
of miners. (Acts 1893, p. 213). Miners have a lien on the output,
machinery, and tools used to secure payment for work done. Three
years’ possession of a mine, with work required by law, gives possessory
right.
M o rtg a g e s are not liens as against any one, though such person
has actual notice of their existence, until they are acknowledged In
the form prescribed and filed for record. Mortgages of real estate
are recorded In the county where the land lies, and mortgages of
SYNOPSIS 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
offered and fails to bring the required amount real estate may be
offered again after one year and personal property after sixty days,
and is then sold for what it will bring. The mortgagor of real estate
RELATING TO
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
recites), is barred by statute of limitations.
BANKING AND COMMERCIAL USAGES.
Chattel Mortgages may be acknowledged ana filed as other mort­
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
Revised b y H e n ry G. W . D in k e l s p ie l
recorder’s office with the same effect as though recorded. Mortgages
Attorney and Counselor at Law. San Francisco.
of personal property reserving in the mortgagor the power of disposi­
(See Card In Attorneys’ List.)
tion are fraudulent.
M ortg ag es an d D eeds o f T ru st may be enforced b y foreclosure
at any time within the period prescribed by law for foreclosing mort­
A c co u n ts . An account is assignable, and the assignee may main­
gage or deed o f trust so far as the property mentioned and described
tain an action thereon, although the account Is assigned merely lor
in such mortgage or deed o f trust is concerned, but no claim or debt
collection. An action to recover a balance due upon a mutual current
against the estate o f a deceased person shall be probated against
and open account or upon an open book account is barred within four
such estate whether secured by mortgage or deed o f trust or not
years. The cause of action on a mutual account is deemed to have
except within the time prescribed by law for probating claims against
accrued from the date of the last item. In the case of an open book
said estate.
account, each item becomes outlawed four years after its date. (See
P ow ers o f A tto r n e y . Lands may be conveyed by power of attor­
Actions and Limitations.)
ney, which Is acknowledged as deeds and recorded in the county
A c k n o w le d g m e n ts . Before an Instrument can be recorded, Its
where the lands lie.
execution must be acknowledged by the person executing it, or if
P rob ate L aw . (See Administration of Estates.)
executed by a corporation, by its president or secretary, or other
person executing the same on behalf of the corporation, or proved by a
P rotests. (See Bills of Exchange and Promissory Notes.)
subscribing witness, or by Judgment in an action brought for the,
R e co rd s. (See Acknowledgments,
Conveyances,
Mortgages,
purpose. The proof or acknowledgment of an instrument may be
Chattel Mortgages, and Powers of Attorney.)
made at any place Mthln the State before a justice or clerk of the
R e d e m p tio n . (See Executions and Mortgages.)
supreme court, and M thin the city, county, or township for which
the officer was appointed or elected, before either: (1) A clerk of a
R e p le v in . The plaintiff in replevin may file an affidavit describing
court of record; (2) a county recorder; (3) a court commissioner;
'kthe property, stating its value and the amount of damages he expects
(4) a notary public; (5) a justice of the peace. The acknowledg­
to recover, his title, that the property is wrongfully detained by the
ment o f an instrument must not be taken, unless the officer taking it
defendant, that it has not been taken for a tax or under process against
knows
or has satisfactory evidence, on the oath or affirmation of a
plaintiff, and that his cause of action has accrued within three years,
credible Mtness that the person making such acknowledgment is the
and upon giving bond in double Its value, the property shall be taken
individual who is described in, and who executed the instrument;
from the defendant and given to the plaintiff pending the suit, unless
or if executed by a corporation, that the person making such acknowl­
the defendant within two days after it is taken'gives a crpss-bond.
edgment is the president or secretary o f such corporation, or other
R evision . The last revision o f the statutes was in 1904.
person who executed it on its behalf. Officers taking and certifying
acknowledgments or proof of instruments for record, must authenti­
T ax es are a lien between vendor and purchaser from the first Mon­
cate their certificates by affixing thereto their signatures, also their
day in December. They are payable between the first Monday In
seals o f office, if by the laws of the State or country where the ac­
January and the 10th of April. In case of non-payment a penalty of
knowledgment or proof is taken, or by authority o f which they are
25 per cent is added. Lands may be redeemed within two years by
acting, they are required to have official seals. Acknowledgments
paying taxes, penalty, and costs, with 10 per cent interest. Minors,
taken out of this State to be used Mthin this State may be taken
lunatics, and persons in confinement may redeem within two years
before a notary public, a commissioner appointed by the governor
after their disability is removed. (See also Corporations.)
of this State, a judge, or clerk of a court o f record, or in foreign
T e s tim o n y . (See Evidence.)
countries a minister, consul, vice-consul, or consular agent of the
T ransfer o f C o rp o ra tio n S to ck . (See Corporations.)
United States, or a judge of a court of record or a notary public,
T ru st C om p an ies must have a paid-up capital of $50,000, and
A c tio n s. All civil actions are commenced by filing a complaint,
in counties with a population exceeding 50,000, they must have a sub­
upon which plaintiff may, at any time within one year thereafter, have
scribed capital of not less than $100,000. They may exercise all the
a summons issued. There is but one form o f action and the only
powers commonly conferred on such companies.
pleadings allowed on the part o f the plaintiff are: 1. The complaint.
W ages. N o assignment or order o f wages to be earned in the
2. The demurrer to the answer. 3. The demurrer to the cross­
future to secure a loan o f less than $200, shall be valid against any
complaint. 4. Thè answer to the cross-complaint, and on the part
employer or the person making such assignment or order, until such
of the defendant: 1. The demurrer to the complaint. 2. Ihe
assignment or order is accepted in writing b y the employer and the
answer. 3. The cross-complaint. 4. The demurrer to the answer
said assignment or order and the acceptance o f same has been filed
to the cross-complaint.
with the recorder o f the county where the party making the assign­
A d m in is tr a tio n o f E states. Upon the admission of a will to
ment or order resides, if a resident o f the state where he is employed.
probate, letters testamentary are granted by the superior court to tno
N o assignment or order o f wages to be earned in the future shall be
executor named in the will, unless he be dead or Incapable o r unwilling
valid when made by a married man unless the written consent of his
to act, In which case letters testamentary are Issued to an adminis­
wife to making such an assignment or order for wages shall be attached.
trator with the will annexed, appointed by said court. In case oi
W areh ou se R e ce ip ts a n d B ills o f L a d in g shall not be given
intestacy, letters of administration are issued to the bona fide resi­
except where the, commodities mentioned are received on the premises,
dent of the state entitled thereto, in the folloM ng order: 1. Relatives
and are under the control of the warehouseman at the time of its
of whole blood entitled to adminster in preference to those of nan
Issuance. No warehouseman shall sell, encumber, ship, or remove
blood. Surviving husband or wife, or some competent person named
any such commodity for which a receipt has been given without the
b y either. 2. Children. 3. Father or mother. 4. Brothers. 5. bis­
written assent of the holder of the receipt. The same provisions cover
ters. 6. Grandchildren. 7. Next o f kin entitled to share in the dis­
owners and agents of boats and vessels. All warehouse receipts and
tribution o f the estate. 8. Public administrator. 9. Creditore.
bills of lading are made negotiable by written endorsement and
10. Any person legally competent. Where the person entitled w
delivering the same as bills of exchange and promissory notes, and no
administration is a minor or incompetent, letters must be granted to
printed or written conditions, clauses, or provisions Inserted in or
his or her guardian, or to any other person entitled to letters o
attached to them shall In any way limit their negotiability or impair
administration in the discretion of the court. Bonds for faitnnu
the rights and duties of the parties thereto, or persons interested
performance of duty are required of an administrator and oi an
therein, or such conditions shall be void. Warehouse receipts given
executor unless waived by the will. Notice must be given by
by any warehouseman or other person for goods and other com­
administrator
or executor by publication to all the creditors to corno
modities deposited, and all bills of lading given by any carrier, boat,
in and prove their claims M thin ten months after its first
vessel, railroad, transportation, or transfer company may be trans­
when
the
estate
exceeds in value the sum of ten thousand dollars,
ferred by endorsement and delivery; and the transferee shall be
and four months when it does not. 11. Claims arising on contrae
deemed to be the owner of such commodities so far as to give validity
whether due or not due or contingent, and funeral expenses must w
to any pledge, lien, or transfer given, made, or created, thereby; and
presented within time prescribed by notice to creditors, otherwise
no property so stored or deposited shall be delivered except on sur­
they are forever barred, unless it appears by affidavit o f the creditors
render and cancellation of such receipts and bills of lading, unless
that such creditor was outside o f the State and consequently on*
such receipts and bills of lading have the words “ not negotiable
not receive notice. Unless claim is approved Mthin the time pro­
plainly written or stamped on their face. A carrier may however
vided for in the notice it is barred, unlèss the claimant can prove
deliver to shipper or consignee goods without presentation of bill of
to the satisfaction o f the court that he had no notice by reason u
lading upon receiving from such shipper or consignee bond in double
being out o f the State, in which case the claim may be presemi
the value of the goods conditioned for delivery to the carrier there­
at any time before a decree of distribution is entered. When « s g s j
after the original bill of lading (acts 1907). Penalties are denounced
is rejected either by the executor or administrator or the jims«.
against any warehouseman or other person who shall violate any of
the holder must bring suit in the appropriate court thereon *
the provisions of this statute. So much of the act as forbids the
three months after the date of its rejection, if it be then due, or wltnio
delivery of property except the surrender and cancellation of the
two months after it becomes due, otherwise the claim is forevc
original receipt or bill of lading shall not apply to property replevined
barred. No claim can be allowed which is barred by the Statute u
or removed by operation of law.


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THE LAW S OF CALIFORNIA

BANKING AND COMMERCIAL L A W S — CALIFORNIA
r imitations Claims against the estate are Dald in the following
nrder- l Funeral expensfes. 2. The expenses of the last sickness.
S Debts having preference by the laws of the United States. 4.
Tiidement rendered against the decedent 1n his lifetime, and mort­
gages and other liens in the order o f their date; and 5, ail other de­
mands against the estate.
A f f id a v it s . An affidavit to be used before any court, Judge, or
officer o f this State may be taken before any officer authorized to
administer oaths. In this State every court, every Judge or clerk of
anv court, every Justice and every notary public, and every officer or
oerson authorized to take testimony in any action or proceeding, or
decide upon evidence, has power to administer oaths ana 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
eovernor of this State to take affidavits and depositions in such other
State, or before any notary public iD another State, or before any
judge’ or clerk o f a court o f record having a seal. An affidavit taken
in a foreign country to be used in this State, rhay be taken before an
ambassador, minister, consul, vice-consul, or consular agent o f the
United States, or before any judge o f a court o f record having a seal,
in such foreign country.
Aliens.
1. All aliens eligible to citizenship-may take, hold and
dispose of property, real and personal, within this State.
2 All aliens not eligible to citizenship may acquire and possess land
in accordance with the terms o f any existing treaty with any foreign
country of which such alien is a citizen, and not otherwise, and in
addition may lease land for agricultural purposes for three years.
3. Any company, association or corporation composed in the main
of aliens may acquire and possess land in accordance with the terms
of any existing treaty with any foreign country o f which they are
citizens, and not otherwise, and in addition may lease land for agri­
cultural purposes for three years
4. When it appears in any probate proceedings wherein any alien
is an heir that he could take real property except for the provision of
this act, the probate court shall order the sale o f isuch real property
and distribute the proceeds to such alien.
5. For any violation o f this act the attorney-general shall institute
forfeiture proceedings and upon final judgment the lands shall escheat
to the State.
6. When it appears that any alien or aliens are holding any lease­
hold interests in violation o f the above provisions the attorney-general
shall likewise institute forfeiture proceedings, and such leasehold
interest or its monetary value together with the costs o f suqh forfeiture
proceedings shall escheat to the State.
No non-resident alien can take by succession unless he appear
ana claim within 5 years after death o f decedent.
A rbitration. The submission to arbitration must be in writing,
and it may-stipulate that it be entered as an order o f the superior
court, for which purpose it must be filed by the clerk. If the sub­
mission 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 o f a judgment. Title to real property
cannot be arbitrated. Upon application a State Board o f Arbitra­
tion has jurisdiction over disputes between employer and employee.
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 fidu­
ciary 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 bis property or is about to do
so with intent to defraud creditors. Bail given upon arrest is liable
upon judgments secured.
A ssignm ents fo r th e B en efit o f C reditors. 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. Assignments must contain names
of creditors and the amounts.
A ttachm ents may be issued at the time of or any time after
issuing the summons where amount sued for exceeds $10.00. All
property not exempt from execution may be attached. An, attach­
ment lien upon real property continues for three years and may be
extended for two years more. The clerk o f the court must issue
the writ of attachment upon receiving an affidavit by or on behalf
of the plaintiff showing, (1) That the defendant is indebted to the
plaintiff, specifying the ambunt o f such indebtedness over and above
all legal set-offs or counter-claims, upon a contract, express or implied,
for the direct payment o f money, and that such contract was made
or is payable in this state, and that the payment o f the same has
not been secured by any mortgage or lien upon real on personal prop­
erty, or any pledge o f personal property, or, if originally so secured,
that such security has, without any act o f plaintiff, or the person
to whom the security was given, become valueless; or (2) That the
defendant is a non-resident o f the State, and is indebted to plaintiff,
specifying the amount o f such indebtedness over and above all legal
set-offs or counter-claims, upon a contract expressed or implied;
or (3) That plaintiff’s cause o f action against defendant is one to
recover a sum o f 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 o f the defendant, and
that the defendant is a non-resident o f 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,
clerk must require a written undertaking on the part of the plain­
tiff, in a sum not less than $200, or in Justices Court o f from $50.00
t° 8300, and not exceeding the amount claimed by plaintiff, -with
sufficient sureties, to the effect that, if the defendant recovers judgment,
. the plaintiff will pay. all costs that may be awarded t o the defendant,
and all damages that he may sustain by reason o f the attachment,
3 * 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 o f the attachment, not exceeding the sum speci­
fied m the undertaking.
p
Savings. A savings bank may purchase or hold: (1)
«eai Estate, furniture, fixtures, etc., in which its business may be
conducted. (2) Property mortgaged or held in trust on account o f
®ny money lent in the course o f business. It shall not purchase
personal property except (1) bonds or interest bearing obligations


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1581

o f the United States (2) bonds o f the State. (3) Bonds of any state
which has not defaulted in payment of either principal or interest
within five years. (4) Bonds -of any county, city or town or school,
road, sewer, drainage, reclamation, protective or sanitary district,
organized under the laws, of the state, to limited amount. (5) Bonds
of any county, city or town of any state o f a population o f more than
200,000 and an entire bonded indebtedness less than fifteen per cent
of the taxable property, where interest or principal has not been
defaulted within five years. (6) Bonds o f railroads organized under
the state and operating exclusively therein or o f railroads operating
at least 500 miles of standard gauge tract, or o f any railroad cor­
poration payment of which has been guaranteed, by the preceding
clauses of railroads; provided, that in all cases the net earnings are
as required by statute. (7) Bonds o f Public Utility corporations,
incorporated under the laws o f the State of California, provided the
properties and earnings, etc., are as required by statute. (8) Notes
or bonds secured by first lien on real estate to sivty per cent o f its
market value. (9) Collateral trust bonds or notes secured by de­
posit of authorized bonds fifteen per cent in excess o f such collateral
bonds or the deposit of such bonds and other securities twenty per
cent in excess o f such collateral bonds, provided the market value
of the authorized bonds deposited equal such collateral bonds. (10)
Bonds accepted by savings banks under the laws of New York or
Massachusetts. (11) Certificates issued b y Corporations with a
paid up capital stock o f not lpss than $100,000, secured upon real
estate and guaranteed in the 'manner required by the Bank Act.
N o savings bank must loan money except on adequate security on
real or personal property and such loan must not be for longer than
ten years. It must have a paid up capital stock graduated from
$25,000 when located in any place o f less than 5,000 population, to
$300,000 when the population is in excess of 200,000. Savings
banks organized without capital stock must have a reserve fund of
$1,000,000. The capital stock and surplus of savings banks, must
equal ten per cent to and including $2,000,000 deposit liabilities,
must exceed seven and one half per cent o f deposit liabilities from
$2,000,000 to $5,000,000, five per cent from $5,000,000 to $15,000,000,
two and one half per cent from $15,000,000 to $40,000,000, and,one
per cent of deposit liabilities in excess o f $40,000,000. A surviving
husband or wife br next of kin of any deceased person may, without
procuring letters o f administration, withdraw any sum deceased
may have had on deposit in any savings bank if the sum does not
exceed ,$500.00.
B anks. The business o f banking may be carried on only by
corporations organized for that purpose under the Bank Act. The
capital stock and surplus o f commercial banks must exceed ten per
cent of deposit liabilities. Such corporations are classified as: Com­
mercial,. Savings or Trust companies, and, together with building and
loan associations, are conducted under the supervision and inspection
of a State Superintendent o f Banks, to whom such banks must sub­
mit at stated intervals to examination. N o person unless organized
as a bank under the laws o f tihis state may hold himself out as en­
gaged in the banking business, or use the word bank, savings or
trust company in connection with his business. Every bank may
conduct a commercial and savings department, provided its capital
stock, if situated in a locality o f less than 5,000 population amounts
to $25,000, or both or either departments in conjunction with a
trust department if the same amounts to $125,000. If the population
of a locality is from 5,000 to 25,000 a capital o f $50,000 is required
for a savings and commercial department and $150,000 for both or
either in conjunction with a trust department. If the population
is from 25,000 to 100,000 a capital of $200,000 and $400,000 respec­
tively, is required; if the population is over 200,000 a capital o f $300,
000 and $500,000, respectively, is required. Every bank must des­
ignate the character o f its business. A bank organized under the
laws of another state must comply with all the requirements o f the
State Bank Act, set apart to its business conducted here the surplus
paid up stock required o f California corporations, and constitute the
State Superintendent o f Banks its agent for service o f process. A
banker has a general lien dependent upon possession of all property
in his hands belonging to a customer for the balance due to him
from such customer in the course o f business. The same capital
stock is required o f commercial banks as o f savings banks. (See
savings banks.) With some >exceptions no commercial bank can lend
more than ten per cent of its capital stock on •unsecured loans or
twenty-five per cent upon security worth at least fifteen per cent
more than tne loan so secured, but a commercial bank may buy or
discount bills o f lading or exchange drawn against actual value or
buy and discount commercial paper, not to exceed twenty-five per
cent o f its capital and surplus.
B ills an d N otes. The Uniform Negotiable Instruments Law is
in force. Statutes o f 1917. Chapter 751.
Chattel' M ortgages may be made on any personal property,',
including growing crops and fruit, except personal property not cap­
able of manual delivery, articles o f wearing apparel and personal
adornment, and the stock in trade o f a merchant, provided that when
said personal property refers to fixtures or equipment o f a merchant,
seven days notice must be given, otherwise the same is void as to
creditors o f the mortgagor. In the absence o f delivery and continued
change o f possession, the chattel mortgage will be void as to creditors
o f the mortgagor unless acknowledged or proved, certified, and re­
corded, as required in cases o f grants o f real property and accompanied
b y affidavits o f all the parties that it is made in good faith, and with
out any design to hinder, delay or defraud creditors. Such mortgages
must be recorded in county it is situated in and if removed to another
county a copy o f mortgage must be recorded in County within 30
days or mortgagor must take possession.
C ollaterals. Are governed by the law relating to pledges of per­
sonal property. A pledge is a deposit of personal property b y way of
security for the performance of any act. Delivery of the thing
pledged is essential to the validity of the bailment. When the per­
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 timeiand
place at which the property pledged will be sold, at such a reasonable
time before the sale as will enable the pledgor to attend, but notice
of the sale may be waived by the pledgor at any time. The sale
must be by public auction and must be for the highest obtainable
price. After the sale the pledgee may deduct from the proceeds the
amount due and the necessary expenses of sale and collection, and
must pay the surplus to the pledgor. The pledgee, or a pledge­
holder, may purchase the property pledged when the same is sold
at public auction. . A pledgee can not sell any evidence of debt
(collateral) pledged to him, except the obligations of governments,
states, or corporations: but he may collect the same when due.
C on tracts. Certain contracts are invalid unless the same or
some note or memorandum thereof is in writing. (See Statute o f
Frauds.) A contract for personal services cannot be enforced for
over two years.
C on v ey a n ces. An estate in real property, other than an estate at
#111, 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. Leases o f agricultural land for a longer period than 10

1582

BANKING AND COMMERCIAL L A W S — CALIFORNIA

years ana o f city property for a longer period than 50 years are void.
A fee simple title is presumed to be intended to pass by a grant of
real property, unless it appears from the face o f the grant that a
lesser estate was intended. A grant o f real property may be made
in the following form : “ I, A. B., grant to C. D. all that real prop­
erty situated in (insert name o f county) county. State o f California,
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 o f the word “ grant” implies the following
covenants: 1. That Drevious to the time of the conveyance the
grantor had not conveyed the same estate, or any right, title, or inter­
est 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 suc­
cessors. Instruments entitled to be recorded must be recorded by
the county recorder o f 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
o f 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 void as against any subsequent purchaser or
mortgagee of the same property, or any part thereof, in good faith
and for a valuable consideration, whose conveyance is first duly
recorded.
C orp ora tion s. Private corporations may be formed by the volun­
tary association o f any three or more persons, in the manner prescribed
by statute not to exceed 50 years. A majority o f such persons must
be residents o f this State. Private corporations may be formed for
any purpose for which.individuals may lawfully associate themselves.
The number o f directors o f corporations for profit, except those
mentioned as excepted, may be increased or diminished, by a major­
ity o f the stockholders o f the corporation to any number, not less
man three, who must be members o f the corporation. A copy o f the
articles o f incorporation, certified by the secretary o f State, must be
filed with the county clerk o f every county where the corporation
purchases, acquires or locates property, within sixty days after
such purchase or location. Upon filing the articles o f incorporation
in the office o f the county clerk o f the county in which the principal
business o f the company is to be transacted, a copy thereof, certi­
fied by the county clerk, with the secretary o f State, the secretary o f
State must issue to the corporation over the great seal o f the State
a certificate that a copy o f the articles containing the required state­
ment o f 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 b y the name stated in the certificate,
and for a term o f fifty years, unless it is in the articles o f incorporation
otherwise stated, or in the code otherwise specially provided. A
copy o f any articles o f incorporation filed in pursuance or this chapter,
and certified by the secretary o f State, must be received in all the
courts, and other places as prima facie evidence o f the facts therein
stated. (See Foreign Corporations.) All stocks is assessable for the
purpose o f paying debts and meeting expenses but no single assess­
ment must exceed 10%. The franchise o f all corporations as dis­
tinct from its tangible property is subject to taxation.
Each stockholder o f a corporation is individually and personally
liable for such proportion o f its debt and liabilities incurred while
he was a stockholder as the amount o f stock or shares owned by
him bears to the whole o f the subscribed capital stock or shares of
the corporation, and for a like proportion only o f each debt or claim
against the corporation, but such liability is barred within 3 years
after the obligation is incurred. Any creditor o f the corporation
may institute joint ot several actions against any o f its stockholders
for the proportion o f this claim, payable by each, and in such action
the court must ascertain the proportion o f the claim or debt for which
each defendant is liable, and a several judgment must be rendered
against each in conformity therewith. I f any stockholder pays
his proportion o f any debt due from the corporation incurred while
he was such stockholder, he is relieved from any further personal
liabilities for such debt; and il 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 install­
ments or purchase money of stock in the name of a minor, sq 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, ana similar judgments may be rendered.
C ou rts. 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 monev 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, i f 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 fore­
close liens on personal property, where neither the amount of the
liens nor the value of the property amounts to $300.
Superior Court. The jurisdiction of the superior court Is of two
kinds : 1. Original. 2. Appellate. The superior court has original
jurisdiction in all cases in equity; in all civil actions in which the sub­
ject of litigation is not capable of pecuniary estimation; in all casQS 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; o f actions of forcible entry and detainer, of pro­


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ceedings in insolvency; of actions to prevent or abate a nuisance- of
all matters of probate, of divorce and for annullment of marrlavpand of all such special cases and proceedings as are not othenris«
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 h*
taken within thirty days of the ludgment.
0
District Courts of Appeal. The State is divided into three appellate
districts, each of which has a court of appeals with three justices
These courts have appellate and original jurisdiction. The general*
line of demarcation between the supreme court and these courts is
the amount of money or the value of the property Involved The
district courts of appeal have appellate jurisdiction on appeal from
the superior courts in all cases at law in which the demand exclusive
of interest or the value of the property in controversy amounts to
$300 and does not amount to $2,000; also in all cases of forcible
entry and detainer (except such as arise in the justices’ courts)In proceedings in insolvency, and in actions to prevent or abate a
nuisance; in proceedings in mandamus, certiorari and prohibition
usurpation of office, contesting elections and eminent domain, and
In such other special proceedings as may be provided by law (except­
ing 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. Said courts also
have appellate jurisdiction in all cases, matters and proceedings
pending before the supreme eourt which shall be ordered by the
supreme court to be transferred to a district court of appeal for
hearing and decision.
. Supreme Court. Has original and appellate jurisdiction. In the
exercise of original jurisdiction it shall have power to issue writs ot
mandamus, certiorari, prohibition, and habeas corpus; it shall also
have power to issue all other writs necessary ana proper for the
complete exercise of its appellate jurisdiction. The supreme court
has appellate jurisdiction in all cases in equity, except such as arise
In the justices’ courts; also In all cases at law which Involve the title
or possession o f real estate or the legality of any tax, impost, assess­
ment, toll or municipal fine, or in which the demand exclusive of
interest or the value ot 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 oases where the judgment
of death has been rendered; the said court also has appellate Juris­
diction in all cases, matters and proceedings pending before a dis­
trict court of appeal which shall be ordered by the supreme court to
be transferred to itself for hearing and decision.
D ep osition s. The deposition of a witness out of this State may
be taken upon a commission issued from the court under the seal of the
court.Mipon 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 clerk o f the superior
court o f the county to the effect that the person issuing the same
was an acting justice of the peace at the date o f 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
notary public, judge or justice o f the peace or commissioner selected
b y the court, or judge, or justice issuing it. I f issued to any country
out o f the United States, it may be directed to a minister, ambassador,
consul, vice-consul, or consular agent o f 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 o f a witness out o f the State may be
taken b y deposition in an action, at any time after the service of the
summons or the appearance o f the defendant; in a special proceeding,
at any time after a question of fact has arisen therein. Depositions
must be taken in thq form o f question and answer. The words of
the witness must be written down, in the presence o f the witness,
b y the officer taking the deposition or by some indifferent person
appointed b y 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 correctéd by him in any particular, if desired, by writing
or causing his corrections to be written at the bottom o f the deposition,
and must then be subscribed by the witness. Corrections must be
initialed by officer before whom deposition is taken. I f the parties
agree in writing to any other mode, thé mode so agreed upon must
be followed.
Depositions in this State. The testimony of the witness in this
State may be taken by deposition in an action at any time after the
service of summons or the appearance of defendant, and in a special
proceeding after a question of fact has arisen therein, in certain
enumerated cases.
Depositions 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 pend­
ing, 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 commis­
sion, 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 ipecial proceeding
is pending, the deposition of a witness taken under such circum­
stances, 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 ox the witness, the judge or justice must cause ms
testimony to be taken in writing, and must certify and transmit the
same to the court or judge before whom the action or proceeding is
pending, in such manner as the law of that State requires.
D escen t a n d D istrib u tion - o f P rop erty . Property, both real
and personal, of an intestate passes to his heirs. A surviving wue
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 f o’lows: li tne
decedent leaves a surviving husband or wife and only one child, or
the lawful issue of one child, in equal shares to the surviving nusbana
or wife and child or issue of such child. I f a surviving husband or
wife and more than one child living, or one child living and the
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 chiia living, the remainder goes to all the unom
descendants, and if they are in the same degree of kindred to tne

BANKING AND COMMERCIAL L A W S — CALIFORNIA
they share equally, otherwise b y right or representation.
Tf the decedent leaves no surviving husband or wife, the whole estate
Era to the Issue— the Issue o f children taking by right of represen­
t s ;.., If there Is no Issue the estate goes one-half to the surviving
v&afwiTid or wife and the other half to the father and mother in equal
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
Satprs or to their representatives. If there is no Issue, or husband or
mite the estate goes to the father and mother, or the survivor, or, if
imth he dead, then In equal shares to the brothers and sisters, and
♦ « th e children of any deceased brother or sister by right of repre.¿ntatlon If the decedent leaves a surviving husband or wife, and
neither Issue, father, mother, brother, nor sister, the whole estate
2 « ps to the surviving husband or wife.
If the decedent leaves neither
usue husband. wife, father, mother, brother, nor sister, the estate
most go to the next o f kin in equal degree. Illegitimate, children
inherit from mother, also from father if recognized In writing but
ptm nnlv inherit directly and not by representation. These are the
nrincioal provisions o f the law o f succession. Tenancy by the cour­
tesy is not known to our law. I f the person dies testate, all property
passes as directed by the will.
Executions. M ay Issue any time within 5 years from entry, o f
Judgment and after lapse o f 5 years the judgment may be enforced
«r carried into execution by leave o f court upon motion, or by judg­
ment for that purpose, founded upon supplemental proceedings.
No right o f stay exists except by order o f the court, in its excretion.
Execution may issue against the property o f a judgment debtor
after his death, only if the judgment be for recovery o f real or per­
sonal property, or the enforcement o f liens thereon. Real property
may be redeemed within one year, personal property not at all.
E xem ptions. The following property Is exempt from execution:
i Chairs, tables, desks, and books, to the value of $200. 2. Neces­
sary household, table and kitchen furniture belonging to the Judgment
debtor, including one sewing machine, stoves, stove-pipes and furni­
ture wearing apparel, beds, bedding and bedstead, hanging pictures,
oil paintings and drawings drawn or painted by any member o f the
family, and family portraits; and their necessary frames, provisions
and fuel actually provided for individual or family use sufficient
for three months, and three cows and their sucking calves, four hogs
with their sucking pigs, and food for such cows and hogs for one
month, one piano, one shotgun, and one rifle. 3. The farming
utensils or implements o f 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 buggy and two wagons, and food for such oxen, h o rs«,
or mules for one month; also all seed, grain, or vegetables, actually
provided, reserved or on hand for the purpose o f 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 ve­
hicle belonging to any person who is maimed or crippled, and the
same is necessary in his business. 4. The tools, or implements or
mechanic or artisan necessary to carry on his trade; the notarial
seal records, and office furniture o f a notary public; the instruments
and chest o f a surgeon, physician, surveyor, or dentist, necessary to
the exercise o f their profession, with their professional libraries and
necessary office furniture; the professional libraries o f attorneys,
judges, ministers o f the gospel, editors, school teachers and music
teachers and their necessary office furniture, including one safe and
one typewriter, also the musical instruments o f music teachers ac­
tually used by them in giving instructions; and all the indexes, ab­
stracts, books, papers, maps, and office furniture o f a searcher of
records necessary to be used in his profession; also the typewriters
or other mechanical contrivances employed for writing in type ac­
tually used by the owner thereof for making his living; also one
bicycle when the same is used by its owner for the purpose o f carrying
on his regular business, or when the same is used for the purpose
of transporting the owner to and from his place o f business. 5. The
cabin or dwelling o f a minor not exceeding in value the sum o f $500;
also his sluices, pipes, hose, windlass, derrick, cars, pumps, tools.
Implements, and appliances necessary for carrying on any mining
operations, not exceeding in value the aggregate sum o f $500; and
two horses, mules, or oxen, with their harness, and food for same
tor one month, wnen necessary to oe used in any whim, windlass,
derrick, car, pump, or hoisting gear, and also his mining claim, actu­
ally worked b y 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
(lying, and one horse with vehicle and harness, or other equipments
used by a physician, surgeon, constable, or minister of the gospel in
; the legitimate practice of his profession or business, with food for
same for one month. 7. One fishing boat and net, not exceeding
the total value $500, the property o f 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 earn­
ings not exceeding $3Q0. 10. The earnings o f the judgment debtor
for his personal services rendered at any time within thirty days
next preceding the levy o f execution or attachment, where it appears
by the debtor’s affidavit or otherwise, that such earnings are neces­
sary for the use o f 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 commop necessaries, o f life,.or
nave been incurred at a time when the debtor had no family residing
In this State, supported in whole or on part by his labor, the onehalf of such earnings above mentioned are nevertheless subject to
execution, garnishment, or attachment to satisfy debts so incurred.
11. The shares held by a member o f a homestead association duly
incorporated, not exceeding in value $1,000, if the person holding
the shares is not the owner o f a homestead under the laws o f 'this
State. 12. All the nautical instruments and wearing apparel of
any master, officer, or seaman o f any steamer or other vessel. 13.
All Are engines, hook and ladders, with carts, trucks, carriages, hose,
buckets, implements, and apparatus thereunto appertaining; and
all furniture and uniforms o f any fire company or department or­
ganized under any law o f this State. 14. All arms, uniforms p.nd
accoutrements required hy law to be kept b y any person, and .also
one gun to he selected hy 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., o f any building, mining claim, etc., not exceeding the
value of $1,000. 17. All machinery, tools, and implements neces­
sary in and for boring, sinking, putting down, and constructing sur­
face or artesian wells, also the engines necessary for operating such
machinery, implements, tools, etc.; also all trucks necessary for the
transportation o f such machinery, tools, implements, engines, etc.,, to
the value o f $1,000. 18. All moneys, benefits, privileges, or im­
munities accruing, or in any manner growing out o f any life insurance
on the life o f th8 debtor, if the annual premiums paid do not exceed
$500. 19. Shares o f stock in any building and loan association to
the value1o f $1,000. 20. Pensions from the United States Govern­
ment. No article, however, or species o f property mentioned in
this section, is exempt from execution issued upon a judgment re­
covered for its price or upon, a judgment o f foreclosure o f a mortgage
or other lien thereon. (For Homestead Exemptions, see Homestead.)
Fraud. (For Fraudulent Debtors, see Arrest.) Any contraot
obtained through fraud Is voidable. Consent Is deemed to have
hcredent


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1583

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 believes It to be true, the suppression of that
which Is true by one having knowledge of it, and promises made with­
out 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 muiftading another to his prejudice. Actual fraud Is always a
question of fact.
G a rn ish m en t. Upon receiving Instruction In writing from the
plaintifl 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
In pursuance of such writ. All persons having any such property
a t the time of serving of such writ, unless it Is delivered up or trans­
ferred or paid to thp 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.
H om estea d . The homestead consists In the interest of the
claimant, divided or undivided, in the dwelling house In which the
claimant resides, and in the land on which the same Is situated,
selected, If the claimant be married, from community property, or
the separate property of the husband, or, with the consent of the
wife from her separate 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 Droperty. 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 home­
stead 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’ , suo-contractors.
artisans’ , architects’, builders', laborers’ of every class, materialmen's
or vendors’ Hens upon the premises. 3. On debts secured by
mortgages on the premises, executed and acknowledged by the hueband and wife or by an unmarried claimant. 4. On debt» secured
by mortgages on the premises, executed and recorded before the
declaration of homestead was filed for record. In cases not enum­
erated 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 home­
stead 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, b y another
person upon death o f either spouse, if homestead Is selected from
community property or from separate property o f spouse joining
.therein, title thereto vests in survivor otherwise to the heirs or de­
visees o f the person whose property was selected.
H u sban d an d W ife. The husband Is the head of the family.
He may choose any reasonable place or mode of living, and the wife
must conform thereto. In other respects their interests are separate.
Neither husband nor wife has any interest In the 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 o f 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 prop­
erty 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 prop­
erty, with absolute power of disposal other than testamentary, pro­
vided that he cannot make a gift of the same or convey the same
without valuable consideration, unless the wife consents in writing.
The 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 husband is not liable for damages or
torts committed by" wife except in a case where he would be jointly
liable with her if the marriage did not exist. The separate property
o f the husband is not liable for the debts o f the wife contracted before
marriage, and the separate property o f 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 jqint
tenants, tenants by entreaties, tenants in common, or as community
property upon death o f wife entire community property goes to
husband, whereas on death o f husband wife gets one half o f com­
munity.
/
In terest. The legal rate of Interest is 7 per cent andHs 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, DUt personal property brokers „may charge not to exceed 2
(two) per cent per month.
J u d g m e n ts. (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 ft 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 Hen continues for five years, unless the enforcement
o f the judgment be stayed on appeal. A judgment is barred b y the
act o f limitation within five years, -unless revived by leave o f court
upon motion, or b y an action upon the judgment. Judgment must
first be satisfied out o f property o f the judgment debtor which has
been attached and in the custody o f the sheriff.
L iens. Mechanics,, material-mén, contractors, sub-contractors,
artisans, architects, machinists, builders, miners, teamsters, dray­
men and all persons and laborers o f every class performing labor
upon or furnishing material to be used in or furnishing appliances,
teams and power contributing to the construction, alteration, or
repair o f any building, wharf, bridge, ditch, flume, aqueduct, well,
tunnel, fence, machinery, railroad, wagon road, or other structure,
have liens upon the property upon which they have worked or fur­
nished 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 carrier has a,lien upon the luggage o f a passenger
fpr the payment of his fare. One who sells real property has a ven­
dor’s lien thereon. Improvers o f personal property, depositaries for
hire, veterinary surgeons, livery stable keepers and persons pasturing
horses or stock, have a special lien, dependent upon possession.
Factors, banks, and laundry proprietors have a general lien, de­
pendent on possession, on any personal property in their hands.
I Seamen have general liens independent o f possession. Owners of

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BANKING AND COMMERCIAL L A W S — CALIFORNIA

animals used for propagating purposes have a lien for the agreed
price upon the offspring. Loggers rendering' services upon logs,
holts and other timber have a lien thereon for the amount due for
their personal services.
livery person performing work or labor in, with, about, or upon any
threshing machine or engine, horse-power, wagon, or other appliance
thereof, while engaged in threshing, has a lien thereon to the extent
of the value ox his services, for ten days after ceasing work or labor,provided, within that time, an action Is brought to recover the amount
o f the claim, persons repairing or altering any personal property have
a lien for the reasonable value o f such service.
L im ita tio n s. If real estate is held adversely for five years, such
adverse possession ripens into title if claimant pays taxes for 5 years,
except against infants and persons under disability. The periods
prescribed for the commencement o f actions other than for the re­
covery o f real property, are as follows: Within five years: (1)
An action upon a judgment or decree o f any court of the United
States, or o f any State within the United States. (2) An action
for mesne profits o f real property. Within four years: (1) An
action upon any contract, obligation or liability founded upon an
instrument in writing, executed in this State. (1) An action to
recover a balance due upon a mutual open and current count or
upon an open book account. Within three years: fX) An action
upon a liability created by statute, other th n 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
two years: (1) An action upon a contract, obligation or liability
not tounded upon an instrument of writing,. or founded upon an
instrument o f writing executed out o f the State. (2) An action on a
debt, liability or obligation evidenced by an abstract, guarantee or
certificate o f title; and such action shall not be deemed to have accrued
until the discovery o f the loss or damage. (3) An action against
a sheriff, coroner, or constable, upon a liability incurred by the doing
o f an act in his official capacity, and in virtue o f his office, or by the
omission o f an official duty, including the non-payment of money
collected, upon an execution; but this subdivision does not apply
to an action for an escape. Within one year: (1) An action upon
a statute for a penalty or forfeiture, when the action is given to an
individual or to an individual and the State, except when the statute
¡imposing it prescribes a different limitation. (2) An action upon
a statute, or upon an undertaking in a criminal action, for a forfeiture
or penalty to the people o f this State. (3) An action for libel, slander,
assault, battery, false imprisonment, or seduction, or for injury to
or for the death o f one caused by the wrongful act or neglect o f another,
or by a depositor against a bank for the payment o f a forged or raised
check. (4)-A n action against a sheriff, or other officer, for the escape
o f a prisoner arrested or imprisoned on civil process. (5) An action
against a municipal corporation for damages or injuries to property
caused b y a mob or riot. Within six months; (1) An action to
recover property seized by tax collector. (2) T o recover corpora­
tion stock sold for delinquent assessment. T o actions brought to
recover money or other property deposited with any bank, banker,
trust com pany,. or savings and loan society,, there is no limitation.
I f when the cause o f action accrues against a person, he is out of the
State, the action may be commenced within the term herein limited,
after his return to the State, and if, after the cause o f action accrues,
he departs from the State, the time o f his absence is not part of the
time limited for the commencement o f the action. And if the per­
son entitled to bring the action be, at the time the action accrued,
either a minor, insane, imprisoned for a term less than life, or a mar­
ried woman and her husband Is a necessary party with her In com­
mencing-such action, the time of such disability is not a part of the
time limited tor the commencement of the action. No acknowledg­
ment or promise Is sufilclent to take a case out of the operation of
the-statute--of limitations, unless the same is In writing, signed by
the party to be charged. Part payment will not take the case out of
the statute of limitations. Where a cause of action has arisen in
another State, and would be barred by the statute of limitations of
that State, an action cannot be maintained here. There is no limita­
tion upon actions to recover money or property with banks or trust
companies. (See Accounts.)
M arried W o m e n . When a married woman is a party to an
action her husband must be joined except: (1) When the action
concerns her separate property including torts for personal injuries,
homestead property and actions between herself and husband or
when she is living separate and apart from her husband by reason
o f his desertion or by an agreement in writing. A married woman
m ay become a sole trader by the judgment o f the superior court of
the County in which hhe has resided for six months next preceding
thq applihaiion. The husband o f the sole trader is not liable for
any-debts contracted by her in the course o f her sole trader’s business
unless contracted upon his written consent. A married woman may
convey without consent o f her husband, and is not liable for the
deDts o f her husband, but is liable for her own debts contracted
before or after her marriage. She. may contract as a femme sole
so as to bind her separate property. The wife may make a will of
her separate property. The earnings o f the wife are not liable for
the debts o f her husband.
M e ch a n ic s’ L iens. (See Liens.)
M o rtg a g e s. Any interest in real property which is capable of being
transferred may be mortgaged. A mortgage can be created, renewed,
or extended only by writing executed with the formalities required in
the case of a grant of real property. Every transfer of an interest in
real property, other than In trust, made only as the security for the
performance o f any act, Is to be deemed a mortgage, and the fact that
the transfer was made subject to defeasance on a condition may, for
the purpose of showing such transfer to be a mortgage, be proved
(except as against the subsequent purchaser or encumbrancer for
value and without notice) although the fact does not appear by the
terms of the instrument. A mortgage is a lien upon everything ;
that passes by a grant of the property. A mortgage does not entitle
the mortgagee to the possession of the property. The assignment of a
debt secured by a mortgage carries with it the security. When a
mortgage is satisfied or the mortgage indebtedness paid-, the mort­
gagee must satisfy the mortgage of record under penalty. A
mortgagee may foreclose the right o f redemption o f the mortgagee,
unless expressly stipulated.the mortgage is not a personal obligation
on part o f mortgagor.
N otes an d B ills o f E x ch a n g e . (See Bills and Notes.)
P led g e. (See Collaterals.)
Pow ers o f A tto r n e y . An attorney in fact may be appointed for
any purpose for which an agency can lawfully be created. Powers of
attorney can only be conferred by an instrument in writing subscribed
by the principal which must particularly specify the powers con­
ferred. If thei instrument contains a power to convey or execute
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
executed,, unless the instrument containing such revocation is also
acknowledged or proved, certified, and recorded In the same office


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In which the instrument containing the power was recorded Whm
an attorney In fact executes an instrument transferring an «l+Til
In real property, he must subscribe the name of his princiDal t „ i 7
and his own name as attorney in fact.
v 10
P rob ate L aw . (See Administration or Estates, Claims aeaiim
Estates of deceased persons, Descent and Distribution.) The sunprinr
court has jurisdiction of proceedings h, probate, and such proceeding
must be instituted (1) In the county in which the decedent was a
resident: (2) in the county in which he may have died leaving
estate therein, he not being a resident of the State- (3) in th«
county in which any part of the estate may be. if the decedent di«d
out o f the State and was not a resident. (4) In any countv in
which any part o f the estate may be, or the decedent not being a
resident o f the State nor leaving an estate in the county of death
(5) In other cases where application is first made, any person in
terested may petition for probate of a will or may contest such pro­
bate within one year. An inventory and appraisement is reamrert
o f the executor or administrator within three months. Upon the
return o f the inventory the court may set apart for use of the sur
viving husband or wife, or of the minor children, all the property
exempt from execution including any homestead selected, providing
the same was selected from the common property or from the sep
arate property of the person selecting or joining in the selection of
the same. If none has been selected, the court must select desist
nate and set apart and cause to be recorded a homestead for the
use o f the surviving husband or wife, or of the minor children or
if there be no surviving husband or wife, then for the use of the minor
children out o f the common property, or if there be no common
property, then out of the real estate belonging to the decedent Prop­
erty so set apart is not subject to further administration. If upon
the return of the inventory it appears that the value of the whole
estate does not exceed $1.500, the court may set apart the whole
o f the estate for the use and support o f the family of the deceased.
P rotest. (See Bills and Notes.)
R ep lev in . There is no action of replevin in this State, but the
action of claim and delivery substantially takes its place. The
plaintiff in an action to recover the possession of personal property
may at the time of issuing the summons, or at any time before answer
claim the delivery of such property. An affidavit must be made by
the plaintiff or by some one in his behalf showing that the plaintifl
is the owner of the property, or entitled to its possession, that the
property is wrongfully detained by the defendant, the alleged cause
of detention thereof, and that it has not been taken for a tax, assess­
ment or fine, or seized under an execution or attachment, or if so
seized that it is exempt; also the actual,value of the property. Plain­
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 value of the property, and retain the same, but in case he falls
so to do the property is delivered to the plaintiff. Third'parties
may upon affidavit o f ownership, claim such property and secure
its release under bonds. The judgment in such action is in the
alternative for a return o f the property or for its value in case a de­
livery can not be had.
Sale o f S tock Shares. Permit must be obtained from State Cor­
poration Commissioner.
S ta tu te o f Frauds., A will must be in writing, except a nun­
cupative will. (See Wills.) An agreement not to be performed
within a year from making it must be in writing; also a special prom­
ise to answer for the debt, defraud, or miscarriage of another; also
agreements made in consideration of marriage other, than a mutual
promise to marry. An agreement for the sale of goods and chattels
or things in action at a price not less than $200, unless the buyer
accept and receive part of the same or any part o f the purchase
money. N o estate in land will pass other than leases not to exceed
one year, unless in writing. An agreement authorizing or employing
an agent or broker to pin-chase or sell real estate for compensation
or for a commission. An agreement by its terms not to be performed
in the lifetime o f the promise or to make, devise or bequeath by will.
N o evidence is admissable to charge a person upon representations
as to the credit o f another, unless the representations be in writing.
However where promisor has received property to apply pursuant
to promise or a discharge o f an obligation in consideration of the
promise, or where a creditor parts with value or where the new prom­
ise is substituted for the old debt, or where levy or execution is re­
leased or there is benefit moving to promise from any party or where
a factor undertakes for a commission to guarantee a sale, contracts
to answer for the default of another need not be in writing. Transfer
of personal property capable of manual delivery, except wine in cellars
and tanks, when not accompanied by delivery and change of posses­
sion are deemed fraudulent as to third parties unless notice of intenttion o f sale is recorded 5 days before transfer is made in accordance
with law.
S u p p lem en ta ry P roceed in g s. When an execution Is returned
unsatisfied, the judgment creditor can obtain an order requiring the
Judgment debtor to appear and answer concerning his property before
the judge or referee appointed by him. also, in case after the issuing
of an execution, upon proof by affidavit that the judgment debtor has
property which he unjustly refuses to apply toward the satisfaction
o f the judgment, the judge may make the order, and instead thereof.
It it appear tnat the debtor is about to abscond, he may, by order of
the judge, be arrested and required by him to give security for the
Judgment, or that he will attend from time to time during the pen­
dency of the proceedings, and that he will not in,the meantime dis­
pose of any portion of his property, and in default of security he may
be committed to prison.
i Taxes. On the first M onday o f December of each year taxes become
delinquent, except the last installment of the real property taxes, and
thereafter 15 per cent Is added for delinquency; provided, that it they
be not paid before the last Monday in April next succeeding, 5 per
cent is added for delinquency. On the last Monday in April, of
each year, all the unpaid portion of the remaining one-half of the
taxes on all real property is delinquent, and thereafter 5 per cent Is
added for delinquency; and provided further, that the entire tax on
any real property may be paid at the time the first Installment'as
above provided is due and payable; and provided further, that the
taxes on all personal property, unsecured by real property, shall be
due and payable immediately after the assessment of said personal
property is made. Public Utility corporations are taxed for the
support o f the State other property is taxed for, county and city
purposes.
W ills. Every person over the age of eighteen years, of sound
mind, may, by last will, dispose of all his estate, real and personal.
A married woman may dispose of all her separate estate by will without
the consent of her husbaind, and may alter or revoke the will in like
manner as if she were single. Her will must be executed and proved
in like manner as other wills. Every will other than a nuncupative
will must be in writing, and every will other than an holographlo
will and a nuncupative will, must be executed and attested as follows:
1. It must be subscribed at the end thereof by the testator himself,
or some person in his presence, and by his direction must subscribe
his name thereto. 2. The subscription must be made in the presence
of the attesting witnesses, or acknowledged by the testator to them
to have been made by him or by his authority. 3. The testator
must, at the time of subscribing or acknowledging the same, declare
to .the attesting witnesses that the instrument is his will» and 4.

BANKING AND COMMERCIAL L A W S — COLORADO

1585

rru~r<> must he two attesting witnesses, each ot whom must sign his
nomp as a witness at tne end of the will, at the testator s request.
in his presence and in the presence of each other. An holoSranhic will is one that is entirely written, dated, and signed by the
bflTidoi the testator himself. It is subject to no other form, and may.
h» made In or out of this State, and need not be witnessed. A wit»
to a wui should always write his name and residence. All
vises or gifts to a subscribing witness are void unless there are two
other competent subscribing witnesses. No will made out of this
is valid as a will in this State, unless executed according to the
nmvlsions of the code, except that a will made in a State or country
in which the testator Is domiciled at the time of his death, and valid
„ a will under the laws of such State or country Is valid in this State
as to personal property. Wills proven out o f state may be recorded
m county where testator has left over estate.
Beauests for charity are void unless made more than 30 days
hpfore death and must in no case exceed more than one third o f the
«fate unless there are no legal heirs. Wills are revoked by marriage
unless provision for the same or an intention not to provide clearly
appears.

States or any other government or country appointed to. reside in
the foreign country or place- where the acknowledgment is made,
each and all certifying same under his official seal.
4 Out of the State, and within any colony, island possession
or bailiwick o f 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.
A ction s. The distinction between the forms of 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.
A d m in istra tion o f E states. 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 fore­
close for one year unless permitted by thé court and in no event
until the claim has been allowed. Administration Is granted to
surviving husband or widow, or next oi 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 Jiidge may select administrator. In counties having a popu­
lation of more than 50,000 on default o f relatives administration
is made by public administrator. An abbreviated form of administra­
tion is provided for estates not exceeding $500.00. (See Wills; Husband
and W ife; Descents and Distributions.),
A g en t. (See Partnerships.)
A lien s. Mo restrictions as to aliens.
A rb itra tion . Differences may be submitted to arbitration by
eonsent of the parties In the form prescribed by statute, and a judg­
ment may be entered by the clerk of the District Court upon the
finding of the aruitrators.
A rrest. Imprisonment for debt, except in cases where one refuses
to deliver up his estate for the benefit of his creditors, or in cases
ot tort or where there is a strong presumption of fraud, is abolished.
Incivil 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 con­
victed in a criminal proceeding for the same wrong. Imprison­
ment shall not exceed one year, and the prisoner Is released upon
payment of the debt. The writ of ne exeat is granted under proper
circumstances. (See Fraudulent Purchasers.)
A ssig n m e n t. Assignments for the benefit of creditors may be
made in.accordance with prpvisions of the Assignment Act. Assign­
ments of wages not covered at the time of the assignment, or of
other sums to become due to the assignor, are invalid unless 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
provisions regulating assignments to wage-brokers and others..
A tta ch m en ts. In actions on contracts, express or implied, the
plain tiff may have the defendant’s property attached, upon filing a
bond in double the amount sued for, with affidavit o f plaintiff, his
ageiit or attorney, setting forth the amount and nature of the debt
claimed, and one or more o f the following grounds o f attachment:
I. 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 o f his property, dr (8) and (9) is
about to do either, or has departed or is about to depart from this
State, with the intention o f having liis effects removed from this
State. 10. Has failed or refused to pay the price or value o f any
article delivered to him to be paid for upon delivery, or m y 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
ot the plaintiff. In justice courts, the tact that the debt is for farm'
products, house rent, household furniture and furnishing, fuel, gro­
ceries and provisions, clothing and wearing apparel for the debtor
or his family, is additional ground for attachment. Garnishee proc­
ess will issue in aid of attachment when money or property of the
debtor is found in possession of third persons;, property o f non-resi­
dents and absconding debtors can be attached as in most other States.

SYNOPSIS OF

B an ks, State. Any number o f persons, not less than three, may
engage in the business of banking: the capital stock must not be less
than from $10,000 to $50,000 dependent upon population, all of which
must be paid in cash before commencing banking business, and cer­
tificate thereof filed. Generally no bank may take as security a
lien on any part of its capital stock; nor take as security a - lien on
any part of the capital stock pf other banks; nor take as security a
lien for any person on more than 25 per cent of the total shares of
any other bank; 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 con­
tracted in good faith, or in other peculiar circumstances. Stock so
purchased must be sold within three years, and sooner if this can be
done without impairing the bank’s investment. Shareholders in
banks, savings banks, trust deposit and security associations shall be
held individually responsible for debts, contracts, and engagements of
said association in double the amount o f the par value o f the stock
owned by them respectively. Any banker, bank officer or employee
who receives money or property after he shall have had knowledge of
the insolvency of said bank, shall be deemed guilty of a felony, and.
on conviction, punished by imprisonment in the penitentiary for not
more than twenty years, dr by a fine or not more than $2,000, Or both,
and in addition shall be individually responsible for the property
received. Failure o f the bank or banker within thirty days after
receipt of such money of 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 o f the bank. Loans secured on real estate limited
to 25 per cent of total interest bearing securities-and to a period of
three years, but further loans allowed secured by first mortgage on
real estate worth double amount of loan limited to 50 per cent of
saving deposits and to a period of five years. No bank may engage in
trade or commerce; or acquire realty, except such as is necessary for its
business or such as is necessarily acquired in the protection or satis­
faction of previously existing loans made in good faith. Any realty so
acquired must be sold in five years, or sooner if possible. N o director
may borrow money in excess of 10 per cent o f the capital and surplus,
without the consent o f a majority of the directors other than the
borrower. No bank shall loan t o 'a n y officer or employe thereof.
All banks except National Banks, are under the supervision of the
State Bank Commissioner who examines each institution at least
twice yearly. If he finds capital impaired, he requires the bank to
make up deficiency, or takes possession for purposes o f liquidation,
as circumstances may require. Insolvent banks may be placed in con-

THE LAW S OF COLORADO
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by Messrs. G a r w o o d a n d G a r w o o d , Attorneys at Law,
Denver. (See Card in Attorneys’ List.)

Acknowledgments. Of deeds and instruments concerning real
estate, may be taken as follows :—

1- Within this State, before any judge, clerk, or the deputy clerk
of any court o f record, clerk, and recorder o f any county, or his deputy,
or notary public, or before any justice or the peace within his county.
2. Out o f this State and within the United States before the
secretary of any such State or Territory, the clerk o f any court of
record, any notary public, or any commissioner o f deeds for any
such foreign State or Territory appointed under the laws o f this
State; before any other officer authorized by the laws o f any such
State or Territory to take and certify such acknowledgment ¡provided,
there shall be affixed to the certificate o f such officer, other than
those above ' enumerated, a certificate by the clerk o f some Churt
of record o f the county, city or district wherein such officer resides*
under thé seal o f such court, as to the official capacity, true signature
and authority o f the person certifying such acknowledgment.
3. Out o f the United States, before any judge, clerk, or deputy
clerk, of any court' of record o f any foreign kingdom, empire, republic
state, principality, province, colony, island possession or bailiwick,
before .the chief magistrate or dther chief executive officer o f any
province, colony, island possession or bailiwick, before the mayor
or chief executive officer o f any city, town, borough, county or mu­
nicipal corporation, having a seal, or before any ambassador, min­
ister, consul, consular agent, charge d ’affaires, commercial agent,
or any vice consul, etc., or any diplomatic, consular or commercial
agent or representative, or deputy o f any thereof, o f the United

101

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1586

BANKING AND COMMERCIAL L A W S — COLORADO

trol o f the State Bank Commissioner. Usually no receiver can be
appointed, nor can a bank make an assignment for creditors. Every
bank makes reports o f its condition to the commissioner five times
yearly. N o bank can do business without a certificate o f authority
from the commissioner. Savings banks are subject to the state
banking law under a number o f special provisions and restrictions.
B ills o f E x ch a n g e . (See Commercial Paper.)
B ills o f L a d in g an d P ro m isso ry N otes. (See Commercial Paper.)
C h a ttel M o rtg a g e s 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 mort­
gagee must annually record statement stating that the mortgage
secures a bona fide indebtedness, the portion which has been paid,
and the amount still due. Chattel mortgages may be extended
after maturity, but not\ more than thirty days after maturity,
b y filing an executed instrument o f extension o f mortgage-with the
county recorder. As between the parties thereto, all chattel mort­
gages are good until the indebtedness is paid or is barred by the
statue of limitations, Mortgages of stocks of goods which reserve
possession and power of sale to mortgagor, are void as against credi­
tors and bona fide purchasers. Disposing o f mortgaged property
Is larcenv
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 extendediby the mortgagee
fo r 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.
C ollaterals. 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. Transfer o f stock either in pledge or otherwise, must be
noted on the books o f the company within 60 days or the transfer
is vojd for some purposes.
C o m m e rcia l P aper. To be negotiable, an instrument must con­
tain an unconditional order or promise to pay to order, or to bearer,
a certain sum of money on demand, or at a fixed or determinable
tim e or times. The instrument may authorize that upon default
o f payment o f any installment, or of Interest, the whole shall become
•due, and in case of non-payment, the sale of collateral securities,
o r confession of judgment, or waive benefit of any law Intended
fo r 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 fac<e authority to fill in the blanks, but authority must be
strictly pursued. - 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
o f a bank or corporation is deemed prima facie payable to the bank
or corporation, and may be indorsed by the corporation o r .b y 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 nrima 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 knowl­
edge of any invalidity. An unqualified indorser warrants the instru­
ment valid ana subsisting. One indorsing an instrument nego­
tiable by delivery Is liable as Indorser. Except when excused,
presentment for payment, or acceptance, on the day when due is
necessary to charge drawer or indorser of an instrument. Present­
ment must be made on due day, and notice of non-acceptance or
non-payment given on next business day to all parties primarily
liable unless one has authority for all. Every negotiable instrument
Is payable at the time fixed without grace. Waiver of protest Is
•deemed a waiver of formal protest, presentment, and notice of dis­
honor. Protest, is required only In case of dishonored bills' appear­
ing on their face to be foreign. It is optional in case of other nego­
tiable Instruments. Bills drawn and payable within this State are
inland; others are foreign. Parties secondarily liable are discharged
b y extension of time of payment. Payment by a party secondarily
liable, unless an accommodation party, does not discharge the instru­
ment, but he may again negotiate it. A qualified acceptance dis­
charges 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 com­
plete 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 instru­
ments executed on or after July 20. 1897. All instruments falling
due on Sunday or holiday are payable the next business day. In
Denver, during June, July and August, Saturday from twelve o ’clock
noon until twelve midnight is a holiday, but negotiable instruments
-falling due on Saturday are payable and protestable on Saturday or
next business day at the option o f the holder. The provisions con­
cerning commercial paper in this state are practically the same as
in all states where the Negotiable Instruments act has been adopted.
C onveyan ces. N o joint tenancy in real property .unless expressly
declared in the deed, except in certain particular cases, unless
.so declared grantees shall be deemed tenants in common. Lands
not in possession may be conveyed. N ot necessary for wife to join
in deed except in a conveyance o f or a mortgage o f a homestead,
•entered as such o f record.
Witnesses are unnecessary;
Seals
are not necessary but a printed or ink seal is advisable. Unacknowl­
edged deeds are deemed notice from the date o f filing but they can
not be read in evidence unless subsequently acknowledged or proved,
unless they are bn record for over thirty years. (See Acknowledg­
ments; Husband and Wife.)
C orp ora tion s.
Three or more persons may form a corpora­
tion 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
o n beyond the limits of the State, that fact shall also be stated in
the certificate. The certificate shall also state whether or not cumula­
tive voting shall be permitted. Fee for filing Articles o f Incorporation
o f domestic companies is $20, and 20 cents on each thousand dollars
in excess o f $50,000. Foreign corporations $30, and 30 cents on each


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thousand dollars in excess o f $50,000 represented by capital, proDertv
and assets employed and located in Colorado. Directors of a mhiinff
or manufacturing corporation cannot encumber the mines or nlant
o f such corporation until the question has been submitted to th«
stockholders and a majority vote o f all the shares o f stock has been
made in favor o f such proposition; and such mortgage or encumbrance
without such consent is absolutely void. Cumulative method nf
balloting for directors is permitted. Stockholders are liable for
corporate debts to the amount unpaid upon the stock, except that
stockholders in banks, saving banks, trust, deposit, and security
associations are individually responsible in double the amount of the
par value o f their stock, when the stock becomes fully paid up a
certificate to that effect should be filed. The directors are required
annually, and within sixty days from Januray 1st, to file a report
stating the amount of the capital stock, the proportion actually paid
in, and the amount of existing debts, together with many other
particulars. A failure to file such report makes all the directors and
officers o f the company jointly and severally liable for all the debts
of the company contracted during the year next preceding the time
when such report should have been filed, and until such report shall
be made and filed, and subjects president and secretary to a fine of
not less than $1,000. N o meetings o f the bqard of directors can be
held outside the State unless so provided b y the Articles of Incor­
poration. Corporations may be dissolved b y a two-thirds vote of
the entire stock. A corporation under the laws of Colorado, mar
extend its charter by special meeting of the stockholders, called
by 10 per cent of the entire capital stock. Corporate life shall be
renewed for entire term, not exceeding twenty years. Foreign
corporations doing business in this State are not allowed a longer
term of corporate existence than domestic corporations of like char­
acter, but must file renewal certificates and pay fees therefor in the
same manner as domestlo corporations, provided that such renewal
must not extend the life of the foreign corporation beyond the term
fixed by the State where it was organized. Generally no foreign
corporation shall have or exercise any corporate powers or hold or
acquire any real or personal property, franchises, rights, or privileges
or be permitted to do any business or prosecute or defend any suit in
this State, until it has filed in the proper offices copy o f its charter and
Incorporation act, and designated an agent upon whom service ol
process can be made, and until all prescribed fees including license
tax, shall have been paid, and until issuance of a certificate setting
forth such full payment.
"r
In addition to all other fees and taxes, every domestic corporation
shall pay on or before the first day o f M ay o f each year, an annual
State corporation license tax to the secretary o f the State of Colorado,
o f two cents upon each one thousand dollars o f its capital stock, and
every foreign corporation shall pay at the same rate upon that pro­
portion o f its capital, property and assets located and employed In
Colorado.
Other provisions of the Revenue bill, approved March 22, 1902,
and this act regarding annual reports, assessment of tangible and
Intangible property, etc., too voluminous to be quoted, make It
advisable that care should be exercised by both domestic and for­
eign corporations operating in the State to acquaint themselves fully
with Its requirements
(See Guaranty Companies; Trust Companies;
Transfer pi Corporation Stock.)
C ou rts. Justices of the peace have jurisdiction In matters Involv­
ing less than $300, county courts in matters involving less than
$2,000, except in the administration of estates, where jurisdiction
is unlimited. The district court is the court o f general jurisdiction.
The supreme court is the court o f final appeal, and also has some
original jurisdiction, as in cases o f habeas corpus, mandamus and
other remedial writs.
D ays o f G race. Are abolished. (See Commercial Paper.)
D ep osition s. The deposition of a witness out of the State shall
be taken upon commission issued by the clerk of the court where
the suit is pending, on the application of either party, on five days’
previous notice to the other, which notice shall be accompanied
by a copy of the interrogatories to be attached to the commission.
It may be issued to a person agreed upon by the parties or to any judge
or justice of the peace, or to a commissioner appointed by the gover­
nor of the State to take affidavits and depositions in other States
and Territories, or to a notary public. The adverse party may file
and have attached to the commission such cross-interrogatories
as he may desire.
Parties may agree by written stipulation to
take the deposition orally, or, upon proper cause shown, may obtain
an order o f court directing it to be so taken. Depositions can be
taken at any time after starting suit
D escen ts a n d D istrib u tion s. The estate of an intestate descends
one-half to the surviving husband or wife, and the residue to the
surviving children and descendants of children, if any; if none,
then the whole descends to such surviving husband or wife. Except
as enumerated the estate of every intestate descends; 1. To his
children surviving, and the descendants of his children who are dead,
the descendants collectively taking the share which their parents
would have taken if living. 2. If no children nor their descendants,
then to his father an 1 mother, share and share alike, ana if one 'dead,
then to the other; if no father or mother, then to his brothers and
sisters, and to descendants of brothers and sisters who are dead,
the descendants, collectively, taking the share of their Immediate
ancestors in equal parts. 3. If none of the foregoing living, then to
the grandfather, grandmother, uncles, aunts and their descendants
the descendants taking collectively the share of their immediate
ancestors in equal parts. 4. If none of the relatives above enu­
merated be living, then to the nearest lineal ancestor and their descend­
ants, the descendants collectively taking the share of their immediate
ancestors in equal parts. All posthumous children or descendants
of the intestate, inherit as if born In the lifetime of the intestate;
and all children of the half blood and all legally adopted children
shall inherit as children of the whole blood. Illegitimate children
Inherit if parents subsequently intermarry.
D ow er. Common law Dower and curtesy are abolished, as such,
but statutory half o f husband and wife in each others estate is given
in lieu o f old common law dower and curtesy. (See Statutes.)
E xecu tion s. Executions#may be issued where no appeal is taken,
and when placed in the hands o f an officer become a lien upon all
personal property o f the debtor not exempt, in the county to which
it is issued, and it may be directed to the sheriff o f any county to
the State. Executions may issue upon judgments at any time after
5 days from judgment and within twenty years from the date of entry
but from and after twenty years from the entry o f judgment, it is
considered satisfied unless revived as provided by law. Debtor or
legal representative has six months to redeem land from sale under
.execution. Judgment credtior has three months after expiration of
said six months. Judgments can be made a six year lien on real
estate o f debtor by filing transcript with recorder o f the county where
the real estate is situated.
E x e m p tio n s. Homestead, consisting of town house and lot or
lots, or of any farm to the value of not to exceed $2,000, is exempt,
when such homestead has been entered of record as such, and is
occupied by a householder, the head of a family. Personal property
exempt Includes all wearing apparel of the debtor and his family
pictures, school books and library, beds and bedding, stoves, cook­
ing utensils, and household furniture, not exceeding $100; provisions
and fuel for six months; tools, implements, or stoek in trade, up to
$200: one cow and calf, ten sheep and necessary food for six months,

BANKING AND COMMERCIAL L A W S — COLORADO

1587

following order: 1. Laborers or mechanics working by the day
or piece, without furnishing material. 2. Sub-contractors and
material-men, whose claims are either entirely or principally for
materials, machinery or other fixtures. 3. All principal contractors.
Laborers are allowed one month, material men two months, and the
original contractor three months after the completion of the structure,
within which to file claim of lien. Action to enforce such lien must be
commenced within six months after completion of the building
upon which it is claimed.
M ortgages. Ordinary mortgages on realty are in common use;
also deeds o f trust to a public trustee and to private trustees. A
6XFraud. Parties to any fraudulent sale o f any lands, goods or
trust deed to private trustee is foreclosed as is a mortgage. In case
.hittels or who conceal, secrete, remove or dispose of any goods
the public trustee is named, the property is sold by him as provided
or chattels, or are parties to any bond, suit, judgment, or exein the deed, after advertisement in a newspaper designated in the
Mition contract or conveyance had made, or contrived with
trust
deed, and such advertisement shall not be less than four weeks.
intent to deceive and defraud, or defeat, hinder, or delay creditors:
Upon a sale by the public trustee, a certificate o f sale is issued. A
are criminally liable.
One who purchases goods on credit under
subsequent incfimbrancer may redeem by paying the amount bid,
assumed or fictitious name with Intent to defraud the seller:
and the sum so paid shall be added to the amount o f the subsequent
Jr having purchased goods on credit shall, with intent to defraud
incumbrance. The grantor in the trust deed, or his assigns may
the seller, sell, hypothecate, or otherwise dispose of them out of the
redeem from sale within six months. After six months, and within
usual course of business, or secrete himself, or abscond, shall be
nine months, a judgment creditor may redeem. After the expiration
»uilty of a misdemeanor.
o f the period o f redemption the public trustee executes a deed to
Frauds, S tatu te o f. The following must be In writing: Con­
the property to the holder o f the certificate o f sale, which is assignable.
tracts for leasing of land! for period longer than one year o r for
Redemption from sales o f mortgaged property the same as sales under
the sale of lands, or any Interest in lands; every agreement which
executions.
/'
h? Its terms is not to be performed within one year; every special
N otes an d B ills o f E x ch a n g e . (See Commercial Paper.)
nromise to answer for the debt, default or miscarriage of another;
P
artn
erships,
L
im
ited
an
d
Special.
A
limited
partnership
averv agreement, promise, or undertaking made upon consideration
may consist of one or more general partners, Jointly and severally
of marriage, except mutual promises to marry, and every contract
liable,
and
one
or
more
special
partners
contributing
a specified
tor the sale of any goods, chattels, or things In action, for the price
amount of cash or property, who are not liable for the debts of the
of $50 or more, unless the buyer accepts and receives part of such
partnership beyond the amount so contributed. Only the general
mods or the evidence of some o f them, or the buyer at the time
partners can bind the firm. A certificate must be signed, acknowl­
pays part of the purchase money. (See Sales of Personal Property.)
edged, published, and filed of record giving details of partnership.
Garnishm ent. (See Attachments.)
All persons doing business under any name other than their per­
Holidays. The following are legal holidays in Colorado: First
sonal names, must file an affidavit showing the real persons repre­
day of January. 12th day o f February.
22nd day o f February.
sented, or they may not bring suits upon debts due, and may be
30th day of M ay. 4th day o f July. 25th day o f December. Thanks­
convicted and fined.
giving Day. Arbor Day, being 3rd Friday in April. Colorado Day,
P ow ers o f A tto r n e y . Powers of attorney for the conveyance
being August 1st.
Labor Day, being 1st M onday in September.
of lands must be acknowledged in the same manner as deeds, and
Columbus Day, being 12th day o f October. In addition to the above,
must
be recorded in the same county wherein-the real property to
Saturday is a legal half holiday during June, July and August in all
be conveyed is situate.
cities of Colorado having a population o f 100,000 and over. N ot all
P rotest. (See Commercial Paper.)
the above are legal holidays for every purpose.
R ep lev in . A writ of replevin may Issue in any suit to recover
Husband an d W ife retain their separate property, real, personal
possession of personal property upon filing a bond in double the
and mixed owned at marriage, and any such property which shall
value of the property, with affidavit of ownership or right to pos­
come to either of them by descent, devise, or bequest, or the gift
session, wrongful detention and value of property, etc. Redelivery
of any person, for their own separate use. Such property o f the
bond in similar amount may be given by defendant in 4ff hours after
wife is not liable for the husband’s debts. W ife may carry on trade
or business, sue and be sued, contract debts, and execute promissory
levy.
notes, bonds, bills of exchange, and other instruments precisely as
Sales o f P ersonal P rop erty . Every sale or assignment of goods
if sole and may convey real estate without the husband joining in
and chattels in the possession or under the control of the vendor
the deed. Any chattel mortgage upon, or sale of, the household
is void, as against creditors or subsequent purchasers In good faith,
goods used by the family, and any conveyance of, or mortgage upon,
unless accompanied by immediate delivery and followed by actual
a homestead, and any assignment of future wages, or sums to become
and continued change of possession, Sales of any portion of a stock
due in the future, when made by husband or wife residing with the
of merchandise otherwise than in the ordinary course of trade are
other, must be joined in by that other. A married woman may
prima facie fraudulent and void against creditors, unless seller and
make a will, but neither husband nor wife shall devise or bequeath
purchaser together, before sale, make inventory, showing quantity,
more than half of his or her property away from the other without
and cost price of the various articles; and unless purchaser makes
the consent in writing of the other, executed after death of the testator
full inquiry of the seller as to names and addresses of all creditors
or of testatrix. Marriage revokes a will previously made.
The
of seller, and the amount due to each, and obtains an answer; and
husband is liable for the debts and liabilities of the wife contracted
notifies each creditor of the proposed sale, the cost price, and the
before marriage to the extent of the real and personal property
proposed selling price; and unless the purchaser retains the inventory
he may receive with or through her, or derive from the sale or rent
and written answer at least six months after the sale. This act
of her lands, and no further. The expenses of the family and the
does not apply to sales by legal representatives of public officers
education of the children are chargeable upon the property of both
conducting sales in their official capacity and there are some other
husband and wile, and in relation thereto they may be sued jointly
exceptions to this law. (See Husband and Wife.)
or severally. Either husband or wife living together can separately
S uits. (See Actions.)
declare property of record in the name of the other “ A Home­
stead," by an entry of record over his or her signature. Neither can
Taxes are generally a lien on real estate until paid, as also upon
mortgage nor convey homestead without the signature of the other.
stocks of goods including new goods added thereto. Taxes may
be
paid in two semi-annual installments; the first half on or before
Interest. The legal rate is 8 per cent, but any other rate not
the last day of February, and the residue on or before the last day
exceeding 12 per cent may be fixed b y agreement. Eight per cent is
of July of the year following the one in which they are assessed.
allowed on overdue bonds, bills, promissory notes, and judgments.
Tax sales are held in November when tax certificates are given to
County, town, and city warrants, and other like evidences or certif­
purchasers on which treasurer’s deed may issue after three years.
icates of municipal indebtedness bear 6 per cent interest from presenta­
Real estate sold for taxes rèdeemed any time until treasurer’s deed
tion. Twelve per cent is the maximum interest rate fixed by the usury
issues. All mines and mining property o f the class heretofore exempted
law, of this state.
by the constitution o f the State shall be assessed and taxed, and the
Judgm ents. A transcript of judgment may be filed in the office
taxes levied and enforced by sale o f the property taxed in default
of the county clerk and recorder of any county In the State, and
o f payment, as is provided by law in the case o f other Classes o f taxable
thereupon such judgment becomes a lien upon all real property
real properties. Delinquent taxes carry interest at the rate o f 12 to
owned by the judgment debtor in that county.
The lien holds for
18 per cent per annum. Household goods to the value o f $200 belong­
six years from the date upon which filed (and successive transcripts
ing
to a head o f à family are exempt.
may be filed.) An unsatisfied judgment should be revived every
W Uls. Males of the age of twenty-one years, and females of
twenty years. (See Executions.)
the
age of eighteen years, may dispose of their property by will,
Lim itations. Actions for the recovery of land must be brought
but personal property may be disposed of by will by any person
within twenty years after accrual of right. Actions for the recovery
o
f
the
age o f seventeen years. For restrictions as to married persons,
of lands actually occupied by another under a connected title deduosee ‘ ‘ Husband and W ife.’ ’ All wills, whether o f realty or personalty
ible of record or under tax or execution or other sale ordered by
shall be in writing signed by the testator or Some One for him in
court must be brought within seven years after possession taken.
his presence and at his direction, and attested in his presence by
If title is acquired after taking possession, statute runs from date
tw ) or more credible witnesses. Unless otherwise expressed in the
of acquiring title. Actual possession of land for seven years under
will an after-bom child will share in the propeity. Devises and
claim and color of title with payment of all taxes for said period,
bequests to witnesses are null and void, unless the will be attested
constitutes the possessor owner according to the purport of his paper
by a sufficient number of witnesses exclusive of such persons. No
title. The same is true of vacant and unoccupied lands, unless someone
will can be revoked otherwise than by the subsequent marriage
with a better paper title pays the taxes for one or more years during
of the testator, or by burning, tearing, or obliterating the same by
such term of seven years. Actions of debt founded upon contract,
the testator, or in his presence and by his direction and consent,
express or implied; upon judgments of courts not courts of record;
or by another will or codicil, declaring the same, duly signed and
for arrears of rent; of assumpsit— or case founded on any contract;
witnessed or by a formal annulment thereof. The property devised
for waste and trepass on land and for replevin, must be begun within
by
will must be administered by the county court, and all property
six years after the cause of action accrues. Actions against sheriffs
o f non-residents must generally be administered to clear title to
and coroners, for liability incurred by them in their official capac­
real
property situated in this State. (See Husband and W ife: De­
ity, shall be brought within one year after-the cause of action accrues,
scents and Distributions. Administration of Estates.)
also actions for assault and battery, false imprisonment, slander
and libel; also actions for penalties or forfeitures o f penal statutes
Bills of relief for fraud must be filed within three years after dis­
covery, in case of a trust not cognizable by the courts of common
law within five years. In actions accruing out of the State upon
contract, express or implied, or upon any sealed instrument in writing,
or judgment or decree of any court, more than six years before the
commencement of the action, the statute o f limitations may be pleaded
m bar of recovery. If a judgment bas been rendered without this
State more than three months before suit in this, State, and is based
on a cause of action more than six years old, such cause of action
can be pleaded in' bar o f the judgment. The constitutionality of
this latter provision has, however, been attacked, and is very doubton. (See 117 Fed. 400.)
Married W o m e n . (See Husband and Wife.)
M echanics’ L iens. Mechanics, material-men, contractors, sub­
contractors, builders, miners, and all persons o f every class performing
labor upon, or furnishing materials used in the construction or repair
oi any building, or any other structure or improvement upon land,
also all who have rendered their professional, skilled service upon
such structure, have a lien upon the property; also those who work or
uirnish materials or machinery for the working of a mining claim
or^mineral deposit shall have a similar lien. Liens rank in the

„„rirfn* animals, up to $200: the library and Implements o f a proman up to $300; one bicycle and one sewing machine,
oprsons not the heads of families are entitled to tools, working animals,
stock to trade, not exceeding $300 in value. When debtor
i. head of family, or wife of head of family, 60 per cent of wages
]?_rat time of levy, under execution, attachment, or garnishment,
Mpmnt when such family resides in the State and Is dependant,
wholly o r ’ partially upon such earnings for support. If such wages
do not exceed $5 per week at the time of levy, they are entirely


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BANKING AND COMMERCIAL L A W S —-CONNECTICUT

1588

SYNOPSIS OF

THE LAW S OF CONNECTICUT
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by L ou is M . R osenbluth , Attorney at Law, New Haven.
A c co u n ts . 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.)
A c k n o w le d g m e n ts . (See Conveyances.)
A c tio n s. There Is but one form of civil action. Mesne process
In civil actions consists of a writ of summons or attachment, de­
scribing the parties, the court to which it is returnable, and the timeand 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 relief may be demanded in the same action«
except in actions before justices of the peace, who have no equity
jurisdiction.
A d m in is tra tio n o f E states. The probate court has jurisdic­
tion o f deceased estates. Administration on intestate estates is
granted to the husband or wife, or next of kin or to both. On their
refusal or incapacity, or upon objection by any creditor or heir to
such appointment found reasonable by the court, then to any other per­
son whom the court deems proper. Bonds, which must be furnished
by the administrators or executors, are usually made double the
estimated value of the personal property. Bonds of surety companies
authorized to do business In the State may be accepted. Where
the will waives the bond a nominal bond Is required, usually In double
the amount of the debts of thè 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 adminis­
trator 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 o f notice, and if presented more than six months
after order o f notice, shall be entitled to payment only out of the clear
estate remaining after payment o f 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 o f the disallowance o f a claim. Twelve months is the
u'-ual time allowed for the settlement o f deceased estates. Admin­
istrators and executors may mortgage real estate if shown to be for
benefit o f the estate, after due application to and hearing in probate
court.
A ffid av its. Civil actions do not ordinarily have to be supported
by affidavits. Affidavits have little weight as evidence, and are rarely
admitted as such.
#
A lien s. Any alien resident of any of the United States, and
any citizen of France, so long as France shall accord the same right
to citizens of the United States, may purchase, hold, inherit, or
transfer real estate In this State in as full a manner as native-born
citizens.
A rb itra tio n . Parties to any controversy desiring to submit the
same to arbitration under a rule of court, and having signed and
sworn to an agreement to that effect, may, upon filing this agree­
ment 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 arbitra­
tion, each may choose one arbitrator and the court appoint a third;
and in either of these three cases, the award of the arbitrators being
returned and accepted by the court, judgment shall be rendered
pursuant thereto, and execution granted thereon, with costs.
A rrest. The body is exempt In ordinary actions for debts, except
for money received by one acting in a fiduciary capacity, or where
there is fraud in contracting the debt o f 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 except
for fraud. A debtor committed to jail on civil process can be released
on taking poor debtors’ oath. The debtor will not be released if his
opth is overcome by rebutting evidence.
A ssig n m e n ts in In s o lv e n cy . Operation of this section sus­
pended during continuance of U. S. Bankruptcy Act.
A tta c h m e n ts . Attachment may be made upon the original
process, and is served by attaching the goods or lands of the defend­
ant, 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 twenty dollars to one hundred and forty
dollars, according to amount attached. An attachment lien expires
upless execution is levied within sixty days after final judgment
upon the attached personal property, or within four months upon
the attached real estate. (See Exemptions.)
B atiks. (See State Banks and Trust Cos.)
B ills of. E x ch a n g e . (See Notes and Bills.)
B ills o f L ad in g. Uniform Bills o f Lading Act passed in 1911.
C h a ttel M o rtg a g e s. (See Mortgages, Conditional Sales, and
Interest.)
C ollateral In h e rita n ce or S u ccession T ax . (See Taxes.)
C o n d itio n a l Sales. All contracts for the sale o f personal prop­
erty, except household furniture, musical instruments, bicycles,
phonographs and phonograph supplies 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 o f sale, and ac­
knowledged before proper authority, and recorded in town where
vendee resides. I f 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.


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C on tra cts. Ordinary provisions of Statute of Frauds aoplv
Courts of probate having jurisdiction of the settlement of the estate
of any deceased person may, concurrently with the courts of equity
authorize the executor or administrator to convey the title of the
deceased in any real estate to any person entitled to it, by virtue
of any contract of such deceased person, and the court of probate
in which the guardian of any minor has been appointed may in
like manner, order such guardian to convey the interest of his ward
In any real estate which ought in equity to be conveyed to anothei
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 o f ' Incapable person pending appointment of
conservator or of spendthrift pending appointment of overseer, void
when selectmen have filed In town clerk’s office certified copy of
application in case of incapable person, and certified notice o f pro­
posed appointment in case of spendthrift. No person who receives
a valuable consideration for a contract, express or implied, made
on Sunday, shall defend any action upon such contract on the ground
that it was so made until he restores such consideration. The Uni­
form Sales Act passed in 1907 covers contracts to sell. (See Sales
by Retail Dealers.)
C on v ey a n ces. 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 or the United
States, a clerk of the superior court, court of common pleas, or dis­
trict court, justice of the peace, commissioner of the school fund,
commissioner of the superior court, notary public, town clerk, or
assistant town clerk, if in this State, and if in any other State or
Territory of the United States, then before a commissioner appointed
by the governor 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, the husband should join in the conveyance, if married before
April 20, 1877.
If the land conveyed belongs to the hus­
band, the wife need not join in the conveyance.
No separate exam­
ination of a married woman is required in taking her acknowledg­
ment. 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.
C orp ora tion s. Corporations may be formed under the general
laws by three or more persons for the transaction of any lawful busi­
ness 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 com­
pany; 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 corpora­
tion, 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, wnich 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 od
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 prop­
erty, a majority of the directors must make and sio-n 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
o f 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. Cer­
tificates for fractional shares cannot be issued. The corporation
has a Tien 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 own­
ing one-tenth of the stock, in case of fraud, mismanagement, or ii
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 ox
state and a certified copy thereof in the town clerk’s office, either
in January or July, giving the names and addresses of the
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 failure to file annual statement the corporation
may forfeit $25 to the State.
C osts. For case before justice of the peace, actual cash costs
not less than $5; before city court from $5 to $25, according to
amount involved; before court of common pleas or superior court,
not less than $25; before supreme court of errors, not less than sou.
Attorney’s fees not Included. Attorney justified in asking deposit
of $15 for case in justice’s court and $50 in any other, court beiore
bringing suit. (See Insurance Companies, Injunctions, etc.)
C ou rts. Terms and1Jurisdiction. Superior court holds one term
per year in each county for the trial of civil causes, and has juris­
diction 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, ana
New Haven counties, has exclusive law and equity jurisdiction above
$100 and below $500, and concurrent jurisdiction with the superior
court above $500 and up to $1,000, and in Litchfield County a&s
exclusive jurisdiction up to $1,000. Not less than four terms eacn
year are held In each of the counties named, and there are c ity court»
in many of the cities, and a district court at Waterbury, with limM"
civil jurisdiction; also town courts in many of the towns. Prooaw
courts have jurisdiction of the settlement of the estates of deceaseu.
Insolvent, and Incompetent persons, and are established in a large

BANKING AND COMMERCIAL L A W S — CONNECTICUT
S p h a v e *civil jurisdiction up to $100. In New Haven ana Hartfnrti iurlsdiction of justice of the peace has been transferred to city
court, except in cases of summary process and bastardy.
Days o f G race. (See Notes and Bills of Exchange.)
D eed s. (See Conveyances.)
Deoositions. May be taken in a civil action by a judge or clerk
nf anv court, justice of the peace, notary public, or commissioner
nf 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
finable to attend the trial, is going to sea, or out of the State, or by
a»e and infirmity is unable to travel to court, or is confined in jail.
Reasonable notice must be given to adverse party. Deponents must
he cautioned to speak the whole truth, and carefully examined.
Thev 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 depo­
sition seal it up, direct it to the court where it is to be used, and
deliver it, if desired, to the party at whose request It was taken.
Deoositions 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
a person residing out of this State, to be used in a cause pending
before such court. The superior court, upon petition, may allow
depositions to be taken to perpetuate testimony concerning that
which may thereafter be the subject of a suit. The person taking
depositions may compel attendance of witnesses by subpoena and
capias.
.
Descent and D istrib u tio n o f P ro p e rty in In te sta te E states.
(As to the share of a surviving husband or wife, see the title Husband
and Wife.) After the share o f the surviving husband or wife, the
residue of the real or personal estate is distributed in equal pro­
portions among the children and the legal representatives of any of
them who may be dead (children who have received estate by advance­
ment 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
»uch kindred, then èqually to the brothers and sisters o f 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.
Dower. (See Husband and Wife.)
Evidence. (See Courts, Insurance Company, Corporations.)
E xecutions. 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 profes­
sional 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.)
Exem ptions. 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 animais not exceeding $150 In value;
ao much of any debt which has accrued by reason of the personal
services of the debtor as shall not exceed $15, including wages,due for
the personal services of any minor child (but there shall be no. exemp­
tion 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 rehtal 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 o f food-stuffs; the horse of any physician
or surgeon not exceeding $200 in value, and his saddle, bridle, har­
ness, and buggy, also his bicycle; one boat owned by one person,
with rigging, tackle, etc., not exceeding $200 in value, used for plant­
ing 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 ordina­
rily occupy it, and lots in any burying ground; and all bene­
fits 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 A tta c h m e n ts. Goods concealed in the hands of agents
or debts due the defendant are reached by foreign attachment which
takes the place of garnishment. No assignment of future earnings
will 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 C orp oration s. Every foreign corporation, except Insur­
ance and surety companies and building,and loan associations and
Investment companies (a corporation which has power to or does
sell or negotiate its own choses in action or sell, guarantee, or negotiate
the choses in action of other persons ,br 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, /Show­
ing 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 thé secretary of the
otate 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 qn the corporation, and that
such appointment shall continue in force as long as any liability
remains outstanding against the corporation in this State. Such


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1589

written appointment shall be acknowledged before some officer
authorized to take acknowledgments of deeds and shall be filed In
the office of said secretary, and copies certified by him shall be suffi­
cient 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 domes­
tic corporations (See Corporations), except that such certificate
need not give the name of the agent or person in charge of its principal
office upon whom process against the corporation may be served.
The secretary shall thereupon record sucll 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
with the provisions of this section, and the secretary shall report
to. the attorney-general every six months the names of all corporations
which have failed to comply with the provisions of this section, and
the attorney-general shall collect all forfeitures due under this sec­
tion. Every corporation whose officers shall fail to comply with
the requirements of this séction shall forfeit to the State $100 for
each failure. The attorney-general may remit this fine.
F oreig n J u d g m e n ts. Not conclusive on question of jurisdiction.
A foreign judgment when used by way of defence, is as conclusive
to every intent, as those of our own courts. In an action on a judg­
ment rendered in another State, evidence on the part of the defend­
ant 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 controversyS A judgment rendered by a court
in one State has no efficacy when it is sought to be enforced in Con­
necticut, unless such court had jurisdiction of the person against
whom it is rendered, acquired either by service upon him of the
process in the suit, or actual notice to him of the suit, or at least by
his having appeared In it, and thus submitting to the jurisdiction
of the court. Jurisdiction presumed to have been properly exercised,
if court once had jurisdiction. Notice presumed of resumption of
jurisdiction if required by practice in foreign court. A judgment
recovered in a sister State is a bar to the further prosecution of an
action pending at the time in this State between the same parties
on the same cause of action. It makes no difference that the judg­
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
when rendered.
F raud. 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 con­
sideration therefor, be void against those persons only, their heirs,
executors, administrators, or assigns, to whom such debt ori duty
belongs.
G a rn ish m en t. (See Foreign Attachments.)
G u aran ty C om p a n ies. (See Surety Companies.)
H olid ay s. (See Notes and Bills of Exchange.)
H u sban d an d W ife. In all marriages contracted after April 19,
1877, neither husband nbr 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 stated.
Wife married subsequent to April 19,1877, may hold and convey
real estate separate from her husband. Separate earnings of the
wife are her sole property. On the death of the husband or wife
the survivor shall be entitled to the use for life of one-third in value
of all the property, real or personal, owned by the other at the time
of his or her decease, after thé 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
o f the decedent absolutely to the extent of $2,000, and one-half
absolutely of the remainder of said estate.
I n ju n c tio n s . Any judge of any court of equitable jurisdiction
may, on motion, grant and enforce writs o f injunction, which shall
be of force until the sitting of such court and its further order therein,
unless sooner dissolved.
Superior court judge may dissolve tem­
porary injunction granted by other court. All facts stated in appli­
cation for injunction must be verified by oath. Plaintiff must give
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 tempo­
rary injunction,'to present to the court or judge the original com­
plaint containing the demand for an injunction, duly verified, with­
out 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 return­
able, or by any judge of thé superior court; provided a written
motion for such dissolution shall be prepared before the return day.
Any person wno may De directly or indirectly interested in, or affected
by the granting of any temporary or permanent injunction, may
appear and be heard with regard to granting or dissolving the same,
When in any action a temporary injunction has beén granted, and
upon final hearing judgment shall be rendered adverse to the contin­
uance of such injunction, either party may apply to the court rendering
such judgment, representing that he is desirous of taking the case
to the supreme court of errors, and Draying that said temporary
injunction may be continued until the final decision therein; ana
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 order­
ing either party to perform any act, upon similar application to

1590

BANKING AND COMMERCIAL L A W S — CONNECTICUT

tbat above mentioned, a stay o f operation o f 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 o f justice shall so require, dissolve said
temporary injunction or remove the stay o f said permanent injuno*
tion while said cause is so pending in the supreme court of errors.
In so lv e n cy . Suspended, owing to United States Bankruptcy Act.
-In terest. Legal rate, in absence o f express agreement, 6 per cent;
no more than 6 per cent can be recovered in either case after debt
becomes payable. Express agreements in which 12 per cent is
charged are valid and any person making a greater charge is liable to
fine and imprisonment. There is no limit to the interest charge
which can be made by any National Bank or any Bank or Trust
Company, incorporated under the laws o f this State nor is there any
limit to the interest charge on a bona fide mortgage o f real property
exceeding the sum o f five hundred dollars. Special law for pawn­
brokers.
J u d g m e n ts carry 6 per cent interest, but are not liens, and execu­
tion may be had at any time during the life o f both parties. Judg­
ment by default may be obtained if the defendant makes no appearance
on or before the, second day o f the session. Certificate o f judgment
may be recorded by judgment creditor or his assignee in town clerk’s
office, and such judgment from the time o f filing such certificate shall
constitute a lien upon the real estate described in such certificate, and
if such lien be placed upon real estate attached in the suit upon which
such judgment was predicated and within four months after such
judgment was rendered, it shall hold from the date o f such attachment.
Such lien may be foreclosed or redeemed in the same manner as
mortgages upon the same estate, and may also be foreclosed b y decree
o f sale.
J u ris d ictio n . (See Courts.)
~ L ien s. (Mechanics’ Liens.) Mechanics’ liens for labor or mate­
rials furnished in the construction or repair o f any building may be
filed by original contractor within s&ty days after completion o f work;
but sub-contractor must serve owner o f building with notice o f his
intention to claim a lien within sixty days after he shall have ceased
furnishing materials or render services and also file his lien within
said time. Payment made by the owner o f the building to the
original contractor in accordance with contract shall be considered as
made in good faith unless the sub-contractor has duly notified said
owner to withhold payment. Mechanics’ liens are foreclosed same
a s'r e a l estate mortgages. Unless foreclosure is instituted, liens
expire two years after filing. (For judgment Liens, see Judgments.)
L im ita tio n s t o S uits. Open accounts and contracts not under
seal, six years; contracts under seal and promissory notes not negoti­
able, seventeen years. Usual exceptions in favor of married women,
minors, lunatics, and those imprisoned. The time during which
the party against whom there may be such cause 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.
There is no limitation against judgments but the common law pre­
sumption o f payment after twenty years exists.
: L im ite d P artn ersh ip s. 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 capital to the partnership stock,
whose liability shall not extend beyond the capital so furnished by
them, to be called special partners.
Such partnerships shall be
conducted under a company name, in which the name of one or more
of the general partners shall appear; and if any special partner’s
name shall be used- in said company name, he shall be held liable
as a general partnef. 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 acknowl­
edgment 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 part­
nership is to be carried on; and a copy o f 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 part­
ners designated as specially authorized as aforesaid; and copies or
said certificates shall, in like manner, be filed in every town where
such partnership may have a place o f 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 partner­
ship may be renewed by filing at any time before its expiration,
with the town clerk, a sworn certificate o f 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 certi­
ficate 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 partner­
ship Is to commence and terminate, signed by the partners thereto,
and specifying whicb 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 o f the capital furnished
b y them shall be withdrawn, either in the shape of dividends, profits
br otherwise, at any time while such partnership continues; except
that any special partner may lawfully be paid from the assets of
such partnership, each year during the continuance thereof, a sum
not exceeding 10 per centum upon the cash contributed by him
to the capital stock; provided that such payment shall only be
made out of the net profits actually earned by such partnerships
during the year for which such payment is made. No special partner
shall under any circumstances be considered a creditor, or allowed
to claim as a creditor. No special partner shall be joined as a party
in any action by or against such partnership unless liable as a general
partner.
M arried W o m e n . (See Husband and Wife.)
M o rtg a g e s of real estate are executed, acknowledged, and recorded
in the same manner as deeds, and are foreclosed by strict foreclosure
or by a decree of sale. Chattel mortgages to be good against third
parties, where the mortgagor retains possession, must be executed,
acknowledged, and recorded as mortgages of land, and can only be
made of the following described personal property— with or without
the real estate in which the same is situated or used— namely:
machinery, engines, or implements situated and used in any manu­
facturing or mechanical establishment; machinery, engines, imple­
ments, cases, types, cuts, or olates situated and used in any print­
ing, publishing, or engraving establishment; household furniture in a
dwelling house used by .the owner therein in housekeeping; hay
and tobacco In the leaf in any building. Piano, organ, melodeon, and
any musical instrument used by an orchestra or band. Brick burned
or unburned, in any kiln or brickyard. Hotel keepers may mort­
gage the furniture, fixtures, and other personal chattels contained


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and used in the hotels occupied oy 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 desert»tion of each article of personal property. Judgment lor deficiency
after sale, permitted.
1
N otaries P u b lic hold office for two years from first day of Feb­
ruary of year in which commissioned, unless commission is sooner
revoked by governor. May exercise their function at any 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 certified to b y 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 o f the court of common
pleas.
N otes a n d B ills o f E x ch a n g e . Negotiable Instruments Act
now in force.
P ow ers o f A tto r n e y . Where a deed Is executed by a power of
attorney It is recorded with the deed. Powers of attorney to convey
real estate must be executed and acknowledged in the manner required
for the execution and acknowledgment of the conveyance itself.
P riv a te B an k s. (See end of State Banks and Trust Companies.)
P rob ate L aw . (See Administration of Estates, Appeals, Assign­
ments and Insolvency, Collateral Inheritance Tax, Courts, Descent
and Distribution of Property, Husband and Wife, and Wills.)
P rotest. (See Nqtes and Bills of Exchange.)
R ecord s. Warranty, mortgage, quitclaim deeds must be recorded
in office of town clerk in town where land lies, also assignments of
mortgage, conditional bills of sale, chattel mortgages, assignments
of future earnings. Certificate of trade-mark to be filed for record
in office of secretary of State. Certificate of unsatisfied judgment
to be filed for record in town clerk’s office. (See Conveyances, Insur­
ance Companies, Limited Partnerships, Judgments, etc.)
R e d e m p tio n . (See Mortgages.)
R ep le v y . 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 affiant states the true value of the goods to be replevied,
and that he believes that the plaintiff is entitled to the immediate
possession of the same, nor until the plaintiff furnishes a bond with
sufficient surety in a sum double the value of the property. This
bond or recognizance must be signed by the obligors in presence
of at least one witness other than the authority taking the recog­
nizance.
Sale o f R eta il B usin ess. A ny person who makes it his business
to buy commodities and sell the same in small quantities for the
purpose o f making a profit and desiring to sell $he whole or a large
part o f his stock in trade, must file a notice o f such intention in the
town clerk’s Office not less than ten nor more than thirty days
prior to such sale.
Sales. Uniform Sales A ct passed In 1907.
S ervice. Service of a writ of summons in case of a resident li
made by reading it and the complaint accompanying it in the defend­
ant’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 fudges, clerks, and
assistant clerks thereof, or any county commissioner, in term time
or in vacation, may, except where it is otherwise specially provided
by law, make such orders as may be deemed reasonable, in regard
to the notice which shall be given of the institution or pendency
of all complaints, writs of error and appeal from probate, which
may be brought to or pending in any court, when the adverse party,
or any person so interested therein, that* they ought to be made
parties thereto, reside out of the State, or when the names or resi­
dences of any such persons in Interest are unknown to the party
Instituting the proceeding; and such notice having been given and
proved shall be deemed sufficient service and notice.
State B an ks an d T ru sf C om p an ies. A reserve fund of 15 per
cent pf aggregate of deposits must be held and maintained in the
banking office, of which 4-15 must be gold and silver coin, demand
obligations o f the United States or national bank currency. The
remainder o f said reserve fund may consist o f balances subject to
demand draft with reserve agents, which are members o f the clearing
house associations o f New York, Boston, Philadelphia, Chicago,
or Albany; or national banks, state banks, or trust companies, located
in Bridgeport, New Haven, or Hartford, and o f railroad bonds which
are legal investments for savings banks. N o new loans or discounts
may be made when the reserve is below 15 per cent. Bank commis­
sioners may apply for appointment o f a receiver when the reserve
falls below 15 per cent after thirty days’ notice
’■.?
No one person, corporation or firm may borrow more than lu
per cent of the amount of the capital stock paid in and surplus undi­
vided 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 dis­
counted. Loans to parties outside the State can only be mace 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 5 per cent of thé capital actually paid in and surplus undi­
vided 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 detail the resources and
liabilities of the bank or trust company, ten days after receipt oi
request therefor from the bank commissioners, which shall be publisnea
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 conu
of $10,000, or acceptable securities of that amount for the protection
of customers from styling themselves bankers in the conduct or tneir
business. Banks and trust companies maintaining savings depart­
ments must invest deposits according to the laws of the State con­
cerning investments of savings banks, and must make sworn state­
ments to the bank commissioners on October 1st in each year ana
oftener if required by the commissioners, of the amount of sucn
deposits and the securities in which they are invested. A State sank
or Trust Company may be incorporated under General Laws as pro­
vided in Chapter 194, Public Acts o f 1913.
S uits. (See Actions.)
S urety C om p a n ies. Any corporation with a paid-up capital of
not less than $250,000, incorporated and organized for the purpose oi
transacting business as suretv on obligations for persons or corpora­
tions, on complying with certain requirements o f law mav be accepieu
as surety upon the bond o f any person or corporation required oy

BANKING AND COMMERCIAL L A W S — D E LA W A R E
tha laws of this State to execute a bond. Every foreign corporation
" transacting
__ /« a *ii * any
Vviielrinco
tn f.Wa
Qfnf.n
mnet.must
d o n odeposit
s it w ith with
tillfl the
wnre
business
in this
State
i««iirance commissioner a copy o f its charter or articles o f association,
sworn statement o f the condition o f its business. The insurance
^mmissioner may thereafter issue to such company a license to do
hmsiness in this State. Such company must appoint the^insurance
PUB
a o
o -A n t. on whom
fi
wm m issioner U
its
agent
process may ube served. Such com
iwnvmust file annually on or before March 1st, with the insurance
Simmissioner, a statement o f the capital o f such company and its
E?i«ifcinents and risks. An annual license is granted if annual statemant b e satisfactory. Local agents must procure certificates o f
r,ifhnritv to act as agent from the insurance commissioner. The
Insiirance commissioner may also at any time examine the
SraJirs of any surety company doing business in the State. A reserve
must be maintained equal to 50 per cent o f the gross amount
nfnremiums received on business in force. N o such company can
on behalf o f any one person or corporation a liability for an
amount larger than one-tenth o f its paid-up capital stock and sur­
plus without giving collateral security.
Taxes. Land may be sold for delinquent taxes after due adver­
t i s e 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
mnnev 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
navlne to the State a tax of 2 per cent on the face amount thereof
lor five years, or at the option of the holder thereof for a greater
or less number o f years at a proportionate rate. Inheritance taxes
are levied on all property within Connecticut possessed by any resi­
dent of Connecticut at the time o f his decease, and all tangible prop­
erty within Connecticut possessed b y a non-resident at the time o f
hfc death which passed by gift, to take effect at death or by will to
any person, corporation, voluntary association or society, with exemp­
tions in favor o f charities and on certain particular kinds o f propertyBates of the taxes are 1 per cent o f the value o f all property in excess
of $10 000 passing to any parent, grandparent, husband, wife, lineal
descendant, adopted child, adoptive parent and lineal descendant o f
any adopted child, up to $50,000 with graded increases; 3 per cent
on property passing to the husband or wife o f any child o f such,
decedant to any stepchild, brother or sister o f the full or half blood
and to any descendant o f such brother or sister in excess o f $3,000
up to and including $25,000, with graded increases; 5 per cent o f the
value of all property in excess o f $500 passing to any persons other
t,hn.n those above mentioned up to and including $50,000 with graded
increases. Only one exemption is allowed for each class.
Transfer o f C o rp o ra tio n S to ck s. (See Corporations.)
Trust C om pan ies. (See State Banks and Trust Companies.)
Warehouse R eceip ts. Uniform Warehouse Receipts A ct passed
m 1907.
Wills. All persons of the age o f eighteen years, and of sound
mind, may dispose of their estate (real or personal) by will. No
devise, except for public and charitable uses, or for the care of ceme­
teries or graves, shall be made to any persons but such as are at
the time of the death of the testator in being, or t o ,their immediate
Issue or descendants. • Wills must be in writing, subscribed by the
testator, and attested by three witnesses, each of them subscribing
In his presence, but they will be effectual here if executed according
to the laws of the State or country where executed. If, after the
making of a will, the testator shall marry, or if a child is bom to the
testator, and no provision is made in 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.
W orkm en's C o m p e n sa tio n A c t. Passed in 1913.

SYNOPSIS OF

THE LAW S OF DELAWARE
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by T

& T o p k i s , Attorneys at Law, Wilmington.
(See Card in Attorneys’ List.)

ow nsend

A cknow led gm en t. (See Conveyances.)
Actions. Suit may be commenced by capias, summons, and
(where defendant Is non-resident) by attachment of property. Sum­
mons in justice’s court may be issued returnable In four days from
date of service, or may be made returnable forthwith, upon plain­
tiff 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 publi­
cation allowed in the court of chancery only.
Affidavits may be administered in the State by the chancellor,
|ny 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 affiant
must sign the affidavit.
Assignm ents an d I n s o lv e n cy . There is a domestic insolvent
Jaw providing for a full surrender and equal distribution of all property,
“fit 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 o f property assigned within thirty days,
“fid two appraisers are then appointed by the chancellor. Assign­
ments must be for the benefit of all creditors alike.


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Federal Reserve Bank of St. Louis

1591

A tta c h m e n ts. Domestic attachment may be issued against an
Inhabitant of this State, after a return to a summons or capias issued
ten days before the return thereof, of non est inventus, and proof
of cause of action; or upon the filing of an affidavit “ that the defend­
ant 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 oi 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 attach­
ment 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.
A ny creditor not duly
presenting his claim receives no share in the distribution. Plaintiff
is not required to give security. Wages are exempt from attach­
ment 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 It
similar to domestic attachment in all respects except as to appoint­
ment 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 bail. B y recent amendment m _cases
of foreign attachment it is no longer necessary to enter security to
discharge the attachment, before an appearance can be entered.
An appearance may be entered without security to discharge the
attachment, and the goods attached remain as security pro tanto.
B an k s. There is no general banking act and but one State bank,
which was chartered by the legislature in 1807. Banking companies
can not be formed at present, except by special act of the Legislature.
The holders of stock are taxed at the rate o f one-fourth o f one per
centum on the cash value o f each share Jo f capital sto(c k. There
have been recently several trust companies formed in the state,
either by special act before the 1897 constitution, and b y general
corporation act since, which have been granted banking powers
by special statute. Banks and trust companies are now subject to
examination and inspection by insurance commissioner. By recent
amendment, National Bank may act as Trustee, Executor, Adminis­
trator, or Registrar of stocks and bonds. Bank by recent amend­
ment, prevented from loaning more than ten per cent o f capital stock
and surplus to any one person.
B ills an d N otes. Acceptance should be in writing on the bill.
All checks, notes, drafts, or bills, foreign or inland, payable without
time or at sight, are due on presentment without grace.
C h a ttel M ortg a g es must be accompanied with an affidavit that
the mortgage is made for the bona fide purpose of securing a debt,
and not tb defraud creditors, and if recorded within ten days from
the acknowledgment thereof; is a Valid lien for five years on persona!
property, the possession of which may remain in the mortgagor.
C laim s A g a in st E states o f D eceased Persons are paid in the
following order: 1. Funeral expenses. 2. Bills for medicine, med­
ical attendance, nursing, and necessaries for last sickness of the
deceased. 3. No more than one year’s wages of servants in house
and laborer on a farm. 4. Rent for not more than one year, either
growing due or in arrears. 5. Judgments and decrees in equity
against deceased. 6. Recognizances, mortgages, and other obliga­
tions of record. 7. Obligations and contracts under seal. 8. Con­
tracts under hand for the payment of money, delivery of goods,
wares or . merchandise. 9. Other demands. Administration 1®
granted: 1. To the person entitled to the residue. 2. To one or
more of the creditors. 3. To any suitable person, resident or non­
resident. Bond must be given for an amount double the value of
the estate. Notice must be given of claims against the deceased
within six months from granting of letters (except claims of record),
or executor or administrator is protected in paying debts of a lower
grade. One year is allowed for settling the estate, and until the
expiration of that time, he need not make distribution, nor is he
chargeable with Interest on the assets in hand. He may be removed
upon sufficient cause. Letters granted in other states and produced
under the seal of the officer or court granting the same, is competent
authority for him to act in this State.
C on tracts are Joint and several, unless otherwise expressed.
C on v ey an ces o f R eal E state must be under seal (a scroll Is
sufficient), and should be executed before one witness at least. Deed
may be acknowledged out of the State before any Consul-general,
consul, or commercial agent of the United States, duly appointed
in any foreign country at the places of their respective official residence;
before the judge of any district or circuit court of the United States,
or the chancellor or any judge of a court of record of any state, tern- ,
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
officer, and the seal o f his office, court, city, or borough, by certificate
endorsed upon or annexed to the deed; or such acknowledgment
or proof may be taken In any such court and certified under the hand
of the clerk or other officer of said court, and the seal of said court
in like manner. In case of such certificate by a judge, the seal of
his court may be affixed to his certificate, or to a certificate of at­
testation of the clerk or keeper of the seal. Such acknowledgment
may also be taken by any commissioner of deeds for this State, or
by a notary public of any state or territory. W ife must join in deed
to bar dower, and husband to bar curtesy.
A deed by a corpora­
tion may be executed and acknowledged by the president or other
presiding officer duly authorized by resolution of the directors, trustees,
or other managers, or by the legally constituted attorney of such cor­
poration under its corporate seal. Deeds must be recorded within
three months after sealing and delivery, to avail against creditors,
mortgagee, or bona fide purchasers, without notice.
C orp oration s. General Corporation A ct tdr all purposes other
than banking. Each stockholder is individually liable for the amount
of capital stock not paid in in proportion to the amount subscribed
by him. Corporations of other states may be sued in this State,
and the property of the same found here may be seized by attachment.
All foreign corporations must file with the secretary of state, state­
ment of assets and liabilities, and the name of its authorized agent
upon whom process may be served; must pay a State tax of $50,
and fees of secretary of state (this State tax is paid but once) must
file with the1prothonotary of each county the name of authorized
agent upon whom process may be served.
, C osts, ‘ Non-resident plaintiffs may be required to give security
for costs.
C ou rts. Terms and Jurisdiction. The different courts of the
State are as follows: Supreme court; regular term at Dover thlrd^
Tuesday in June and January. Court of chancery and orphans

1592

BANKING AND COMMERCIAL L A W S — DISTRICT OF COLUMBIA

court; regular terms, New Castle County, at Wilmington, on the
If her husband die without issue or the children of issue she takes a
fourth Monday In March and second Monday In September; Kent
moiety Instead of a third part of the real estate. A married women
County, at Dover, third Monday In March and third Monday In
of the age of twenty-one years and upward may dispose of her prop­
September; Sussex County, at Georgetown, second Monday In March
erty, both real and personal, by will, without the written consent
and first Monday In September. Superior court, and court of general
of her husband, but subject to his right of courtesy. Two or more
sessions are held In New Castle County at Wilmington the first Mon­
witnesses are necessary for a will. Husband and wife may testify
day In January, March, June, and November and third Monday In
in all civil actions in which either or both are or may be parties to
September, in Kent County at Dover, the first Monday In July and
the suit.
the third Monday In February, April, and October, and in Sussex
M ortg a g es o f R ea l P rop erty are executed and acknowledged like
County the first Monday In February, April, and October and last
other deeds. They become a lien from the time they are lodged
Monday in June In Georgetown. Oyer and terminer meets on call
with the recorder. Upon foreclosure of same there is no redemption
o f judges. Jurisdiction— The superior court has jurisdiction In all
of property. A purchase money mortgage should be recorded within
civil cases, but If suit be brought for less than $50, costs will not
thirty days to avail against a subsequent innocent holder..
be recovered. Justice’s jurisdiction, $200. New Court known as
P ro o f o f C laim s. The full Individual names of plaintiffs and
Court o f Qommon Pleas was recently created for New Castle County.
defendants, together with style of doing business, must be stated;
Presided over by one o f the Judges o f Superior Court. Open con­
or If a corporation, the laws of what state under which incorporated!
tinuously except July and August. Jurisdiction o f all cases ex con­
One of the plaintiffs, If a partnership, or the treasurer or cashier
tractu between $200 and $500; ex delicto up to $500.
of a corporation, must make affidavit to the amount claimed, giving
D ep osition s. In any suit pending, the prothonotary, on appli­
an itemized copv of the cause of action attached thereto. It is
cation, enters a rule commission on the part of the applicant to any
advisable to have the affidavit made before a notary public, though
commissioner of the State or other person. The commission Issues
it may be made before others. (See Affidavit.)
on ten days’ notice of interrogatories filed. Exceptions to Interroga­
P rotest. (See Bills and Notes.)
tories must be filed before the commission issues, and are heard
R ep le v in . The writ Issues out of the superior court to obtain
before a Judge at chambers. Exceptions to the execution must be
possession of goods unlawfully taken or unlawfully detained. No
filed within two days after publication. If the commissioner employ
affidavit is required, but before the officer to whom it Is directed
a clerk, add “ The clerk by me employed in taking, writing, tran­
can execute it the plaintiff or some substantial person for him must
scribing, and engrossing the said depositions, having first duly taken
enter into bond to such officer in *a penalty of double the value of
the oath assigned to the said commission according to the tenor
the goods to be replevined, conditioned to prosecute the suit with
thereof.”
effect, etc. Defendant may give counter bond and retain the goods.
E x e cu tio n s are a Hen upon personalty from the time the sheriff
S u m m on s may be served on the defendant by stating the sub­
received the writ, if actual levy be made within sixty days there­
stance of It to him personally at any .time before the return of the
after. Priority of lien remains in force five years.
Execution
writ, or by leaving a copy of it at his usual place of abode In the
may be issued within five years after date of judgment. An execution
presence of some adult person six days before the return thereof.
from a justice is a lien from time writ is received, If levy be made
Against a corporation may be served on the president or head officer, If
within thirty days and priority'of writ remains for two years. Execu­
residing in the State, and If not, on any officer, director, or manager
tion can not Issue afteri three years without revival. Goods and
chattels of a tenant are liable to one year’s rent in preference to I of the corporation or duly authorized agent named for said services.
In chancery service may be had by publication under order of the
the execution. There Is no redemption on property sold under
chancellor. From a justice service must be personal if forthwith,
execution or mortgage. In New Castle County wages for a month
otherwise four days must intervene before hearing.
of employes of corporations are preferred to the execution. Stay
of six months is granted in courts of record upon judgments recorded
T axes laid and Imposed by the levy court of a county or by the
for want of affidavit of defence, provided security be given within
State for its own purposes, are a lien upon all the real estate of the
twenty days after judgment. In justice’s courts defendant may have
taxable upon whom they are imposed, for two years, and such Hen
six months’ stay, upon pleading his freehold; nine months’ stay upon
has preference to all other Hens against him. General assessments
giving security.
are made every four years.
E x e m p tio n s. No homestead law. Family pictures, blble, and
W ills. Any person of the age of twenty-one years or upward,
library; lot In burial ground and pew In church; all wearing apparel;
of sound mind, may make a will as weU of real as personal estate.
sewing machines in private families; tools of trade not to exceed $50
Every will must be in writing and signed by the testator, or by some
In Kent, or $75 in New Castle County; and to the head of a family
person subscribing the testator’s name In his presence and by his
In New Castle County $200 of personal property and in Kent County
express direction, and attested, and subscribed In his preseh.ce by
$150, consisting of household goods only. No additional exemption
two or more credible witnesses, or It shall be void. A will
In Sussex. The provisions of the exemption law extend and apply
shall be proved before the register of the county In which
to a person dying and leaving a widow, giving and securing to such
the testator resided at the time of his death. A nuncupative
widow the same benefit of exemption that her husband would have had
will of personal estate not amounting to over $200 and pronounced
If living. Wages are exempt from execution attachment in New Cas­
by the testator In his last Illness In the presence of two or more wit­
tle County except for board or lodging. Pianos and organs leased
nesses Is valid If reduced to writing and attested by said witnesses
or sold under contract exempt from execution process or distress
within three days after. Children bom after the date of the will
for rent, provided the lessor or vendor notifies the landlord In
of the parent are entitled to the same share of the parent's estate
writing of the claim thereof.
as if such parent had died Intestate.
F rauds. Sale of goods void as to third parties, unless for a yaluable consideration, and the possession thereof be actually delivered
to the vendee. A promise to pay the debt, default, or miscarriage
of another to the extent of $5 is binding If proved by the oath of the
promisee; for an amount between $5 and $25 must be proved by
one credible witness or some memorandum in writing signed by the
person to be charged therewith; for an amount exceeding $25 there
must be some memorandum or promise in writing signed by the
party to be charged therewith. Sale o f Goods in Bulk Law recently
amended, imposing penalty upon seller and purchaser where require­
ments as to notice on creditors is not carried out.
“G a rn ish m e n t. All persons except public officers, attorneys, etc.,
are subject to summons as garnishees. Wages are not subject to
garnishment in New Castle County except for board or lodging.
H olid ays, L egal. January 1st, February 12th, February 22d,
Good Friday, M ay 30th, July 4th, first M onday in September, October
12— Columbus Day; Day of the general election as it biennially
SYNOPSIS OF
occurs. Thanksgiving Day, and Christmas, and Saturday afternoon
in New Castle County. I f legal holiday falls on Sunday the next
day is observed.
Negotiable paper falling due on legal holiday is
due and payable on the next preceding secular day; if falling due on
Saturday half-holiday, if not presented for payment before noon, is
not due until the next succeeding secular day.
H om estea d . There is no homestead law In Delaware.
In terest. Legal rate is 6 per cent. Any person who takes more
for the use or the loan of money shall forfeit and pay to any one suing
for the Same a sum equal to the money loaned, one-half for the use
RELATING TO
of the State, and the other for the party suing.
J u d g m e n ts of courts of record are liens upon all real estate of the
debtor in the county where judgment is entered from their date, for
BANKING AND COMMERCIAL USAGES
a period o f ten years and may be revived and kept alive and a lien
by SEI. FA. or agreement before expiration o f ten years from date of
entry. This lien may be extended into either or both the other
Prepared and Revised by J o h n B . L a r n k r . Esq. Attorney at Law,
counties. Judgments can only be obtained in this State upon judg­
Washington Loan & Trust Bldg., Washington.
ments in other states by suit, upon a certified copy o f the record of
A c k n o w le d g m e n ts . The deed of a corporation shall be executed
said judgment authenticated uhder the A ct o f Congress passed
by
having
the’
seal of the corporation attached and being signed with
M ay 26, 1790. Transcripts o f judgments recovered before justices
the name of the corporation, by its president or other officer, and snail
o f the peace may be entered in the superior court and thus be made
be acknowledged as the deed of the corporation by an attorney
liens on real estate after execution and return by Constable on goods
appointed for that purpose, by a power of attorney embodied in tne
o f 'defendant. Satisfaction must be entered within sixty days after
deed or by one separate therefrom, under the corporate seal, to oe
payment. Judgment in Court o f Common Pleas is not ia lien on
annexed
to and recorded with the deed.
Real Estate unless Transcript filed as in case o f Justice of Peace.
A c k n o w le d g m e n t o f D eeds. When any deed or contract under
L im ita tio n s. Contracts not under hand and book accounts three
seal relating to land Is to be acknowledged out of the District or
years, bills and notes under hand six years. Judgments and special­
Columbia, but within the United States, the acknowledgment may
ties are merely presumed to have been paid after the lapse of twenty
be made before any judge of a court of record and of law, or any
years, but this presumption may be overcome by proof to the con­
chancellor of a State, any judge or justice of the supreme, circuit, or
trary. All judgments must be renewed witnin ten years in order
territorial courts of the United States, or any justice of the peace or
to preserve their lien on real estate. The statute does not begin to
notary public: Provided that the certificate of acknowledgment
run in favor of non-resident debtor until he come into the State, In
aforesaid, made by any officer of a State or Territory, not having a
such manner that he may be served with process, and If a debtor
seal, shall be accompanied by a certificate of the register, clerk, or
remove after the cause of action has accrued, the time of his absence is
other public officer that the officer taking said acknowledgment was
not computed. On recognizances of sheriffs’ , administrators’ , or
In fact the officer he professed to be. Deeds made in a foreigrii coun­
executors’ bonds, within six years from date. Bond of guardian
try may be acknowledged before any judge or notary public, or oeiore
within three years from the determination of guardianship.
any secretary of legation or consular officer or acting consular ornici
of the United States as such consular officer is described In section io/^
M arried W o m e n retain their real and personal property owned
of the revised statutès of the United States, and. When the msknowiat marriage or received from any person other than the husband.
edgment is made before any other pfflcer other than a se cre ta ry«
May receive wages for their personal labor, and prosecute and defend
legation or consular officer or acting consular officer of the bmieu
suits for preservation and protection of their own property, as if
unmarried, and the rents, issues, and profits of their separate estate
States, the official character of the person taking the
shall be certified In the manner prescribed as to deeds out of tne uiaare not controllable by the husband.; Dower: The widow is entitled
trict of Columbia but within the United States. No deeds of con
to one-third part of all the lands and tenements whereof her husband
veyance of either real or personal estate by individuals shtui oe exe­
was seized at any time during her marriage, unless she shall have
relinquished such right, for and during the term of her natural life
cuted or acknowledged by attorney.


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THE LAW S OF

THE DISTRICT OF COLUMBIA

BANKING AND COMMERCIAL L A W S — DISTRICT OF COLUMBIA
A c t io n s . The common law forms of actions are used except as
modified by statutes.
Administration. The probate court, a special term o f the
«nnreme court of the District of Columbia, has exclusive jurisdiction
the settlement of estates. A written petition Stating the facts
in the case must be filed with the register of wills. This petition is
orted upon by a justice of the supreme court of the District, who sits
Sallv All executors and administrators and guardians are required
tn rive bond with security to be approved by the court. The testator
mav waive the giving of bond, but the court always requires a bond
sufficient to cover the debts and legacies o f the deceased not to exceed
rfouble the value o f the personal estate. B y act o f Congress, certain
trust coihpanies incorporated thereunder may act as executor or ad­
ministrator without bond, and corporations having power under their
charters may act as sureties in all cases where individuals can. Credi­
tors may be barred in thirteen months provided the required notice
is Droperly published. Probate court may order sale o f real estate to
nav debts, in case personal assets are insufficient. Assets' of non resi­
dents in District o f Columbia are subject to claims o f local creditors
for one year after death.
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 real and personal property in the District
of Colum bia, and may acquire real estate by descent. Alien corpora­
tions'are prohibited from acquiring real estate. Corporations o f which
over 50 per cent of the stock is or may be owned by persons or asso­
ciations 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 o f 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:
1. In cases where jurisdiction o f trial court js in issue.
2. Prize cases.
3. Constitutional questions or treaties involved.
4. Where validity of any authority exercised under U. S., by an
officer is in question and
. . .
5. Construction o f any law o f U. S. is drawn m question.
Arrest, There is no imprisonment for debt in the District of
Columbia. The court has the power to imprison for non-payment of
alimony in divorce cases.
Attachm ents 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 fraudu­
lently contracted. Creditor must give bond, with approved surety
or sureties, to be approved by the clerk, in twice the amount of his
claim for costs and damages if attachment is wrongfully sued out.
Bills and N otes. The common law of England relative to bills
and notes, except where changed by statute, governs all cases in which
they are involved. A law similar to the New York Negotiable Instru­
ments Law is now in force in this District. (See Legal Holidays and
Protest.)
Chattel M ortg ag es. No bill of sale or mortgage or deed of trust
to secure a debt of any personal chattels whereof the vendor, mort­
gagor, or donor shall remain in possession, is valid and effectual to
pass the title herein, except as between the parties to such instru­
ment 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
ol real estate; and as to third persons not having notice of it, such
Instrument shall be operative only from the time within said ten
days "When It is delivered to the recorder of deeds to be recorded.
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 pro­
vides that the collateral may be sold upon non-payment of the prin­
cipal of the note, either at public or private sale, and In such cases the
purchaser at any such sale obtains a valid title to the collateral sold.
Contracts. Every contract and obligation entered into by two
or more persons, whether partners or merely joint contractors, whether
under seal or not, written or verbal, and whether expressed to be
Joint and 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 lia­
bility in order to maintain his action, but he is entitled to recover,
as in actions ex delicto, against such of the defendants as shall be
shown by the evidence to be jointly indebted to him, or against one
only, if he alone is shown to be indebted to him, and judgment will
be rendered as if the others had not been joined in the suit. Any of
several joint debtors, when their debt is overdue, may make a separate
composition or compromise with their creditors.
Corporations. Any three or more persons may form a company
for the purpose of carrying on any enterprise or business which may be
lawfully conducted by an individual,/excepting banks of circulation
or discount, railroads and such other enterprise or business as is other­
wise 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
Sling any certificate of Incorporation, must be satisfied that the entire
capital stock has beèn subscribed for in good faith. All o f the stock­
holders of such company are severally and individually liable to the
creditors of the company in which they are stockholders for the unpaid
amount due upon the shares of said stock held by them respectively,
lor all debts and contracts made by such company, until the whole
amount of capital stock fixed and limited by such company shall have
been paid in, and a certificate thereof shall have been made and
recorded. Every such company must annually, except 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
eJ*sfiug debts. Foreign corporations doing business in the District
ol Columbia are subject to service of process on their agents or on
Persons conducting their business, or by leaving copy thereof at
1$®.Principal place of business of such company, or at the' residence
oj its agent. The affairs of the corporation shall be managed by hot
less than three nor more than fifteen trustees, a majority of whom
must be residents of the District, to be annually elected, except for
me first year, by the stockholders, at such time and place as may be
Provided by the by-laws. The fee of the recorder for filing all certiH i of incorporation where capital stock is authorized is forty
cents on each $1,000 of the amount of the capital of stock the


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Federal Reserve Bank of St. Louis

1593

corporation, as set forth in its certificate, provided that no fee shall
be less than $25.
C ourts in session continuously throughout the year-. Suits on
contracts, accompanied by sufficient affidavit of right to recover,
result in judgment in twenty days, èxclusive of Sundays and legal
holidays, after day of service on defendant, unless defendant files an
affidavit setting forth facts which, if true, would in law constitute
a, valid defense.
^
D ays o f G race abolished.
D eeds. The following form of deed is now all that is required In
the District of Columbia to convey a fee simple title to real estáte:
This deed, made t hi s. . . .day of. . . . . . . i n the year. . . . . by m e , . . . .
o f . . . . . . . . . witnesseth: That in consideration of (here insert con­
sideration), I, the said
do grant unto (here insert grantee’s
name), o f ........ .. all that (here describe the property)
1
Witness my hand and seal.
............................... (Seal.)
A deed must be acknowledged and recorded with the recorder of deeds
and takes effect from the time of recording. A scroll is considered a
sufficient seal.
D ep osition s. Depositions of witnesses to be used in any civil
cause whether the, case be at Issue or not, may be taken under any of
the following conditions: 1. Where the witness lives -beyond the
District of Columbia. 2. Where the witness is likely to go out of the
United States or out of the District and not return in time for the
trial. 3. Where the witness is infirm or aged, or for any reason the
party desiring his testimony fear he may not be able to secure the same
.at the time of trial, whether the said Witness resides within the Dis­
trict 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 sover­
eignty 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.
D escen t an d D istrib u tio n . The ordinary rules of descent may
be stated as follows: 1. If an intestate leaves a child or children, or
descendant of such child or children, his property descends to such
child or children, or their descendants, subject only to the dower right
of the widow, if there be one. 2. If the estate descended to the
intestate on the part of the father or mother and there be no child or
the descendant of any child, then to the brothers and sisters and their
descendants. 3. If none, »to the mother or father or the. ancestors
of the intestate and their descendants of the blood of the mother or
father, grandmother or grandfather, as the case may be, subject to the
widow’s dower. 4. If none, then to the husband or wife and their
kindred in equal degree, equally. 5. No distinction between whole
and half blood on part of parent from whom estate descended. 6. I f
there be no heir, the lands shall escheat to the District of Columbia
Personal Property:. If a widow and no child or descendants, parent,
brother or sister or descendants, the widow shall have the whole,
o f child or descendants, the widow shall have one-third o n ly if in
child or descendants, but parent, brother, etc., the widow shall have
one-half. The surplus shall go as follows: (1) If children or descen­
dants, 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 Dis­
trict 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.
D ow er. A wife is entitled to dower in all real estate owned by the
husband at the time of his death, including equitable as well as legal
estates.
E v id en ce. (See Depositions.)
E x ecu tion s. Executions may be levied upon all goods and chat­
tels 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 lease­
hold and freehold estates of the debtor in land. Executions on judg­
ments before justices of the peace may be superseded, according to
the amount of the judgment, upon good and sufficient security being
entered by a person who may at the time be the owner of sufficient
real property located in the District, above all liabilities and exemp­
tions, to secure the debt, óosts and interests from one to six months,
but there can be no stay of execution for wages of servants or common
laborers, nor upon any judgment for less than $5.
E x em p tion s. (Actual residents.) In addition to wearing
apparel, etc., household furniture to the value of $300, implements
of debtor’s trade or business to the value of $200, stock for carrying
on business to amount of $200, one horse, harness and cart, wagon
or dray, and earnings of married men or heads of families, not to
exceed $100 per month for two months. Exemptions are only
allowed where the party claiming such is the head of a family or
householder residing in the District.
F oreig n J u d g m en ts. Suits may be instituted in the supreme
court of the District of Columbia on any judgment of a court of record
in any other jurisdiction. The declaration in any such case must be
accompanied by a transcript of the record of such judgment verified
according to the act of congress in such cases made and provided, and
judgment in due course may be rendered on such transcript as in
any other case.
G a rn ish m en t. After judgment the writ of garnishment may
Issue against specific property or credits in the hands of the garnishee
and on the return of the writ, if there be credits, the Judgment or
condemnation follows. The writ of garnishment can not be issued
against the United States or the District of Columbia.
H olid ays. Legal holidays are January 1st, February 22d,
May 30th, July 4th, first Monday in September (Labor Day), Decem­
ber 25th, or the following day when any of these dates fall on Sun­
day, 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 a r e , not protested until
Monday. Process is not issued or served by the marshal after 12
o ’clock on Saturday.
H u sban d and W ife. The wife’s property is exempt from the hus­
band’s debts. The husband may convey direct to his wife. The
wife may úse 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

1594

BANKING AND COMMERCIAL L A W S — FLORIDA

husband is entitled to an estate by courtesy In her fee simple property
o f 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.
In terest. The legal rate of interest in the District of Columbia is 6
per cent, and In any suit where the contract is tainted with usury the
plaintiff forfeits the whole of the interest so contracted to be received,
and where usurious interest has been paid it can be recovered pro­
vided action for suoh 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 o f 6 per centum per annum until paid.
J u d g m e n ts. Every judgment is good and enforceable by an execu­
tion issued thereon for a period of twelve years from the date when an
execution might first have been issued thereon or from the date of the
last revival-thereof by scire facias. Judgments of the municipal court
are not liens on real estate until recorded in the supreme court of the
District o f Columbia.
J u risd ictio n . (See Actions, Appeals, and Municipal Court.)
L im ita tio n s. Fifteen years for recovery of lands, tenements or
hereditaments; executor’s or administrator’s bond, five years; instru-'
ments under seal, twelve years; simple contracts and recovery of per­
sonal property and damages for its unlawful detention, three years;
statutory penalty or forfeiture, libel, slander, assault, battery, may­
hem, wounding, .malicious prosecution, false arrest or imprisonment,
one year; all other actions three years. Usual exceptions in favor
of persons under disability. Acknowledgment to revive action on
debt must be in writing. Part payment will take debt out of statute.
M arried W o m e n . (See Husband and Wife.)
M ortg a g es. Mortgages are almost entirely supplanted by deeds
of trust, requiring no court proceedings to foreclose. Joining the wife
is necessary to bar dower.
M u n icip a l C ou rt, 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 o f Columbia when it exceeds $100 and not in excess of $500
with right of certiorari in cases of concurrent jurisdiction.
P artn erships. 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
the debts of the partnership beyond the fund contributed by them
to the capital. A certificate setting forth the firm name; general
nature of the business to be conducted; names of all the general
and special partners interested therein, distinguishing which are
eneral and which are special, and their respective places of resience; the amount o f capital contributed' by each special partner
to the common stock; and the period at which the partnership is
to commence and terminate must be filed with the clerk of the supreme
court after having been acknowledged in the manner prescribed for
deeds.
P rotest. May be made by a notary publio under his hand and
seal; or. by any respectable resident of the place where the bill is
dishonored, in the presence o f 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 for same.
If it is not protested the drawer and indorsers are discharged. Where
a bill does not so appear to be a foreign bill, protest thereof in case
o f dishonor is unnecessary. The protest must be annexed to the bill
or oontain 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.
R e co rd s. The exemplification o f 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 o f the United
States; and the certificate of the party purporting to be the keeper
of such record, accompanied by such seal, is prima facie evidence
o f 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 o f 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
o r office in which the record has been made. Is prima facie evidence
to prove the existence and contents of such deed, will, or other instru­
ment in writing, and that it was executed as it purports to have been.
T axes. One and one-half per centum upon assessed value of
property, real and personal. Assessments o f real estate are fixed at
approximately two-thirds o f real value. Penalty o f 1 per cent per
month for default in payment. . Taxes are payable in M ay o f each
year. New assessments are made every two years, for real estate
(unless improvements are put on) and every year for personal property
by a permanent Board o f Assessors. Intangibles are taxed at the
rate o f three-tenths o f one percentum o f the fair value thereof.
T ru st C om p an ies. Trust companies can be organized under the
general provisions of the code on that subject. No trust company
can be Incorporated with less capital stock than $1,000,000. May
do a storage business with a capitalization of not less than $1,200,000.
Foreign companies desiring to operate in the District must first com ­
ply with the provisions for the organization of trust companies under
the laws of this District.
W ills. All wills and testaments must be in writing and signed by
the testator, or by some other person in his presence and by his express
directions, and shall be attested and subscribed in the presence of
the said testator by at least two credible witnesses. No will, testa­
ment, 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, o f 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
the testator to devise property acquired after the execution thereof
shall be deemed, taken and held to operate as a valid devise of all
such property; and any will hereafter executed, which shall by words
o f 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

f


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devise of any real estate acquired, by said testator after the exeen
tion thereof, unless an intention shall appear to the contrary Whem
a devisee or legatee dies before the tastator, leaving issue, such issnS
stands In the place of the deceased devisee or legatee unless a contra n
intention appear from the will.
17

SYNOPSIS OF

THE LAW S OF FLORIDA
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by M . E. M obey , Attorney at Law, Pensacola.
A c co u n ts . Open accounts are barred in three years.
A c k n o w le d g m e n ts 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 publio;
or If made out of the State, and within the United States, before a
United States Commissioner of Deeds appointed by the governor oi
this State, or before a judge or clerk of any court of the United State*
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
publio of such foreign country, or before any minister charge d’affaires,
consul-general, consul, vice-consul, commercial agent, or vice-com­
mercial 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 o f ...........................S
Before the subscriber personally appeared...................................... and
his w ife.......................known to me to be the individuals described in
and who executed the foregoing instrument who acknowledged that
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, appre­
hension, compulsion, or constraint of, or from, her said husband, and
for the purpose of renouncing and relinquishing all her right, of what­
soever kind, in and to said property.
Given under my hand ana seal official this...............day o f ..............
19 ..........
Notary Public.
M y commission expires............ .................................... (See notaries.)
A c tio n s . Suits shall be begun only In the county (or, if less than
$100 in justice district) where the defendant resides, or where the
cause of action accrued, or where the property in litigation is. If
brought in any county where defendant does not reside, the plaintiff,
or some person in his behalf, shall file with the precipe or bill in chan­
cery. 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 resides, 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.
A d m in is tr a tio n o f E states. Upon the death of a person intestate
or having made a will but appointing no executor, the county judge
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 adminis­
trator 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 disa­
bilities. 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 o f June each year or forfeit commissions. The
Circuit Court is empowered to authorize administrator or executor
to carry on deceased’s trade or business for a reasonable time.
A ffid a v its may be made before any judge, clerk of the circuit and
supreme courts, justice of the peace, or notary public.
A lien s. No distinction between any citizens, except that they are
not allowed to vote.

BANKING AND COMMERCIAL L A W S — FLORIDA
Appellate proceedings for the common law side are by
rh of
oi error, which must be sued out within six months from the date
w»rit
Vv,p uidement. The record must be mea m appellate court on or
hpfnre the return day of the writ, under penalty of dismissal. Ques+ipn«nf fact can only be taken up by bill of exceptions, which must be
"»PSPTited within the term of the court unless by spebial order the time
P/pitpnded Appeals in chancery may be taken within six months
S L iam governing writs of error as far as It relates to filing of
conscripts oi records and proceedings thereon and filing assignment
If emirs the duty of appellate court In giving judgment, in causing
Sippiition of its decrees and quashing writs of error, are applicable
fn anneals in chancery. Notice of appeal in chancery must be filed
with clerk and recorded in minutes. This gives appellate court Juris­
diction.
Arbitration. Parties to the controversy may make a ruie of court
«t anv arbitration to which they may desire to submit by filing a state­
ment of agreement of the matters they desire to arbitrate in writing
Sth the court having jurisdiction, which statement shall Include the
names of the arbitrators and the umpire. An award upon such arbi­
tration can only be set aside for fraud, corruption, gross negligence,
pr misbehavior of one or more of the arbitrators or umpire, or evident
mistake acknowledged by the arbitrators or umpire, who made and
signed the award.
'
’
A rrest. No arrest for non-payment of money unless it be for non­
payment of a fine lawfully Imposed.
Assignments a n d I n s o lv e n cy . Assignments by Insolvents are
nmvided 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.
Attachm ent process may issue upon affidavit made, setting forth
that amount is actually due: that plaintiff has reason to believe defend­
ant will fraudulently part with his property before judgment can be
recovered or Is actually removing his property, or Is about to remove
It out of the State, or 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
Inwhich 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 fradulently secreting his property for such purposes. Proof must
also be exhibited to the officer by affidavit other than that of the plamtifl. of the existence of the special ground. The making of the affi­
davit causes all debts to mature for the purposes o f 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 garnish­
ment may be issued at commencement of suit or at any time after­
ward,-provided the plaintiff, his agent or attorney, will make affidavit
that the debt for which the plaintiff sues is just, due and unpaid;
that the garnishment applied for is not sued out to injure either the
defendant or the garnishee; that he does not believe that defendant
Will have in his possession after execution shall be issued visible
property in this State and in the county in which suit is pending upon
which a levy can be made sufficient to satisfy the amount or plaintiff s
claim, stating the amount, and, except in cases in which plaintiff has
had an attachment or obtained his final judgment, he, his agent or
attorney, must enter into bond payable to defendant m double the
amount of the debt, conditioned to pay all cpsts and damages which
defendant may sustain in consequence o f plaintiff’s improperly suing
out the writ.
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, w ithapproval 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 comptrol­
ler, 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
are formed as other corporations are, and can not begin bumness until
authorized by the comptroller. The comptroller of the State may
inspect and supervise the business o f the bank, except.national banks,
and inspect and examine its books, papers, documents, minutes, and
everything pertaining to the acts o f the bank. Banks are required
to make full and complete reports whenever called for by the State
Comptroller in such form as he may prescribe, and advertise m
January of each year amount o f stock, property, and contractual
indebtedness. Before organization the whole o f the capital stock
must be paid in cash. Stockholders are individually liable to the
extent of their stock at the par value thereof, in addition to the amount
invested in said shares. Directors must be citizens o f the United
States, and own ten shares o f stock o f $100 per share. The comp­
troller, with the aid o f the courts, winds up the affairs o f insolvent
banks. Private bankers are subject to all penalties o f the State
banking laws and to the supervision and control o f the State Comp­
troller. No new private' banks permitted after June 4, 1915. It is
a misdemeanor to make wilful and malicious derogatory statements
affecting banking institutions.
Bills of L ading. 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 M ortg ag es an d D eeds o f T ru st. All conveyances in­
tended to secure the payment of money are mortgages. Chattel
mortgages must be recorded or the property delivered to mortgagee
to make them effectual against bona fide creditors and purchasers for
value. Injunction will be granted against the removal of mortgaged
personalty from the State; can only be foreclosed by 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 dis­
turbed by statute. It is a criminal offence to mortgage personal prop­
erty more than once without the consent of first lienor.
Checks and D rafts. It is a felony to obtain money or goods by
drawing and uttering check or draft having insufficient funds _on
deposit to pay same, provided the check or draft is presented in due
course and drawer fails to pay same, or return the consideration
received, within twenty four hours after written notice o f dishonor.
Collateral S ecu rity . It is a misdemeanor to sell, pledge, loan, or
in any way dispose of collateral security without the consent of pledgor,
A written agreement may be made at the time o f making the pledge
tor the sale of the collateral in such manner and upon such terms as
the parties may desire.
Contracts. S ta tu te o f F rauds. In order to bind an admin­
istrator personally, or any one for the debt or default o f another, or
one upon an agreement made in consideration o f marriage; or upon
contracts for the sale lands, tenements, or hereditaments or any uncer­
tain interest therein or for any lease thereof for a period longer than


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1595

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 o f personal property must be in writing,
or the property must be delivered or earnest money paid. News­
papers and periodicals must either be subscribed for or ordered In
writing.
C on v ey a n ces. (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 acknowledg­
ment, taken separate and apart from her husband. 'Words of limita­
tion unnecessary. Husband may convey direct to wife.
C orporation s may be organized for any lawful business under a
general law. Stockholder liable only for amount unpaid upon sub­
scription. 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. (See
Service of Process.)
C osts. Non-resident plaintiff required to give $100 bond to secure
costs. The defendant may have suit dismissed if bond is not given.
C ou rts. Circuit courts hold two terms\a year in each county,
except in twelfth where four terms are held and in first, ninth, eleventh
and fourteenth circuits where they hold three terms a year, 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.
C reditors’ B ills may be brought before claim is reduced to Judg­
ment, but suit at law must be first brought and judgment must be
obtained before decree can be rendered.
D ays o f G race are abolished.
D ep osition s may be taken upon commission when witness resides
out of the county, or is bound for sea, or is about to go out o f the
State to remain until after the trial of the cause, or is Very aged or
Infirm; or when oath is made that a material part of the case or defense
depends upon the testimony of such witness. The time for the suing
out of the commission, the names of the witnesses, and the name of
one commissioner must be given to opposite side a reasonable time
before conimission 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.
D escen t an d D istrib u tio n o f P rop erty . 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 tb the father and mother in equal shares, or to
survivor.
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-grand­
mother, 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 decedant, if without issue,
leaving no husband or wife, shall descend: I. 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 sur­
viving, then it descends according to the general rules of descent
prescribed by statute. Half-bloods inherit only one-half. Adopted
children are treated as children of blood. Bastards Inherit and
transmit through mother’s side, as if legitimate. Aliens have same
right as citizens. There are no entailed estates nor right of survivor­
ship.
D ow er. Deceased may not b y will cut off his widow’s right to
dower. I f dissatisfied with terms o f will, she may dissent within
one year after probate o f will and she will then be entitled to one-third
o f the real estate for life, and, if there are two or more children, to
one-third o f the personalty in fee simple; if there are no children, or
only one, she will be entitled to one-half the personalty. She may
within one year elect to take a child’s part in lieu o f dower. I f the
husband die intestate, without children, the wife takes the whole
estate, or dower, at her election.
E v id en ce. Witnesses not disqualified by reason of Interest. In
civil cases, husband and wife may testify for or against each other.
In suits by or against lunatics or personal representatives, heirs-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 evi­
dence is first offered In behalf of such lunatic representatives, legatees,
devisees, etc.
E x ecu tion s. Executions can be issued immediately upon the
entry of the Judgment and within three years thereafter, and are a lien
upon real estate from date of entry, and upon personal property from
the time the sheriff receives them. They can be renewed
any time
within twenty years from entry of judgment. Both real and personal
property are subject to sale under execution. Executions are return­
able when satisfied, sheriff reporting progress at each term. Sale day
first Monday in each month. No stay law. No redemption of prop­
erty sold under execution.
E x em p tion s to every head of a family residing in the State home­
stead 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
■hfl.il 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 bouse, 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 garnish­
ment.
F oreig n C orp ora tion s. Commercial corporations can do business’
in this State without restriction upon complying with requirements
as to foreign corporations, provided its name is not the same or so
nearly similar to any domestic corporation as to cause confusion.
(See Service o f Process.)
F oreig n J u d g m en ts. Judgments obtained in the several courts
of the State, may be recorded in any county and have same force and
effect as if originally obtained therein. Judgments obtained in other
States or countries, merely evidence, and have to be sued upon to be
made effective as judgments
F raud. (See Limitations of Actions.) Obtaining money or prop­
erty under false pretense or by falsely personating another, are punish­
able criminally.
G a rn ish m en t. (See Attachment.)

1596

BANKING AND COMMERCIAL L A W S — FLORIDA

G u a ra n ty C om p a n ies. Guaranty Companies are permitted to
become surety upon bonds for all purposes after complying with certain
statutory requirements.
H olid ays. Defined b y statute are: Sundays, January 1st, Jan­
uary 19th, February 22d, April 26th, June 3d, July 4th, First M onday
in September, second Friday in October, Thanksgiving Day, Christ­
mas and Shrove. Tuesday or Mardi Gras in cities where there is a
Carnival Association organized for the purpose o f celebrating it.
H u sban d an d W ife. The husband has full control of wife’s prop­
erty and is not chargeable by the wife with the rents and profits.
Must be joined with wife in sales of her property. Homestead can
only be alienated by their joint deed. 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 o f her real estate.
I n ju n c t io n s . Injunctions are granted without bond upon affi­
davit of inability t o . 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; to prevent the removal from the State o f mort­
gaged personal property, and to abate bawdy houses and gambling
dens.
I n s o lv e n cy . Statutes suspended by national bankruptcy law.
In su ra n ce C o m p a n ie s. Foreign and domestic, are placed, by
statute, under control o f State treasurer. 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.
In terest. Eight per cent is allowed on judgments and contracts
where Interest is payable but no rate is specified. Contract-for more
than 10 per cent Is usurious, and all interest forfeited.
J u d g m e n ts of a court of record are a lien for twenty years upon
real estate of debtor within the county where rendered, and may be
extended to other counties by Recording certified transcript of judg­
ment in any county where a lien Is sought. Judgments of Justice of the
peace may be made a lien upon real estate by recording in the office
of clerk of circuit court.
L iens. In order to secure a lien by lis pendens, a statement must
be filed with the clerk of the .circuit court, and recorded by him in a
book kept for that purpose, setting forth the names of the parties, and
the nature of the relief sought, and the description of the property
upon which it is desired to obtain a lien. Statutory liens are given to
laborers and material-men. Property for which materials are fur­
nished upon which labor has been done, is liable to persons not in
privity with owner to the extent of the unpaid balance of debt due
to contractor. Owner personally liable in like amount. Statutory
liens upon real estate, in order to be available as against subsequent
purchasers or lienors without notice, must be recorded, and suit
must be brought within twelve months after the furnishing of the
material, or the performance of the labor. Liens upon personal
property exist only while possession is retained by lienor.
L im ita tio n s o f A c tio n s. Civil actions'can only be commenced
within the following periods after the cause of action shall have
accrued, to wit; Actions on Florida judgments, actions on con­
tracts or obligations in writing and under seal twenty (20) years;
actions for the recovery o f real property, actions on judgments of
courts o f the United States or any other state or territory seven (7)
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 liability created by statute other
than a penalty o f forfeiture, taking, detaining or injury to chattels,
for relief on the ground o f fraud, upon contract not founded upon
instrument o f writing, including an action open account for goods,
wares and merchandise, three (3) years. Actions for libel, slander,
assault, battery, false imprisonment, or an action by another than the
State upon a statute for a penalty or forfeiture two (2) years. Actions
for wrongful death, o f a child, actions against railroad companies for
killing cattle, and any action by the State for a statutory penalty or
forfeiture, one (1) year.
M arried W o m e n retain their property, real or personal, owned
at marriage or acquired thereafter by gift, devise, descent, or purchase,
and it is not liable for husband's debts except by her written consent,
executed according to law regulating conveyances of/married women.
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 suit. W idow 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.
M in o rs. Both sexes attain their legal majority at the age o f 21
years. Minors who deposit in savings banks may control, transfer
or withdraw the money so deposited. All other contracts made by
them are voidable, except for necessaries. Marriage removes dis­
ability o f non-age o f male minor.
M ortgages o f real estate must be executed and proved or acknowl­
edged in the same manner as deeds, and they, likewise assignments
thereof, 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 o f mortgagee ,if left in his possession more than two years
without the mortgage being recorded.
N otaries. Both men and women over twenty-one years may be
appointed notaries public. They must renew commissions every four
years. May administer oaths, take acknowledgments and perform
marriage ceremony. $500 bond is required to be given. Certificate
must show date of expiration of commission.
N otes an d Hills o f E xch an ge. Form and interpretation defined
by statute. N o requirement that it shall be made payable at a bank
or any fixed place. 5 per cent damages are allowed on foreign com­
mercial paper protested in this State. Negotiable instruments falling
due upon a holiday (see Holidays) are payable on the next succeeding
business day. Instruments falling due on Saturday are to be pre­
sented 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 noon on Saturday unless that entire
day is a holiday.
P artn ership , L im ite d , an d S pecial. None.
Pow ers o f A tto r n e y . 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


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Federal Reserve Bank of St. Louis

acknowledgment must state that she executes it freely and voluntarily
without compulsion, fear, apprehension, or constraint of or from h «
husband. The husband must join either in the deed or powers of
attorney. Powers of attorney for the conveyance of real estate mu«
be recorded.
U“1
P rob ate L aw . (See Administration of Estates.) The county
judge has original jurisdiction of all matters relating to the administra
tion of estates of decedents.
P rotest. (See Notes arid Bills of Exchange.)
R ecord s. Records of deeds and mortgages are kept in the office 0i
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
in any county in which the deceased left property, if he dies out of the
State.
If death takes place within the State, then in the county In
which he has had residence, house, or other place of abode at the time
of his death, and if he had none such, then in the county wherein he
died.
R e d e m p tio n . None, excepting tax sales.
R e p le v in lies for goods or chattels wrongfully taken, except when
taken for taxes, or under execution, or at suit of defendant when the
property was originally replevied from defendant and has been
delivered to plaintiff, or when plaintiff is not entitled to possession
Affidavit must be filed, describing property sought to be recovered*
and stating that it was not taken for any tax, fine levied by virtue of
any law of 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.
Seal. A scrawl or scroll, printed or written, affixed as a seal to any
written instrument, is effectual.
S ervice o f P rocess. Out of circuit court, made by the sheriff or
his deputy. Out of county judge’s or justice of peace courts, may be
made 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 o f age. Process against
a domestic or foreign corporation may be served upon any officer or
business agent o f said corporation residing in Florida.
S uits. Actions at law are commenced by filing a precipe with the
clerk. Personal service is required except in suits by attachment and
garnishment. Writs are returnable on the next rule day, provided
ten days intervene; if not, then on the rule day in the next succeeding
month. 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 not due and passable until the first day of Novem­
ber, and if not paid by first day o f the following April property may be
sold. . Owner has two years within which to redeem. Taxes are a
lien from the first day o f the year of the assessment, and have the force
and effect o f a judgment upon which execution may issue.
T e s tim o n y . (See Depositions.)
T ra n sfer o f S tock . 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.
W arehouse R eceip ts. Uniform Warehouse Receipts Act adopted,
and effective after July 31st, 1917.
W ills. Any person over twenty-one years old and of sound mind
may make a will. This includes married women. Wills of real estate
must be signed by testator or some person in his presence and by hit
express direction, and must have two witnesses who must subserib*
in testator’s presence. Wills of personal property must be In writing
and signed by the testator or some one in his présence, and by hit
express direction. Nuncupative wills are good as to personal property.
Revocation may be by subsequent will or codicil attested like the
original, or by burning, cancelling, tearing or obliterating the same
by the testator or b y his direction and consent, or by the act and
operation o f law. Wills must be probated before admittance in evi­
dence. 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 o f State where they are executed.

BANKING AND COMMERCIAL L A W S — GEORGIA
SYNOPSIS OF

THE LAW S OF, GEORGIA
RELATING TO

BANKING AND COMMERCIAL USAGES
D«ri«>d by B r o w n & R a n d o l p h . P a r k e r & S c o t t , Attorneys

Hev

at Law. Atlanta. (See Card In Attorneys’ List.)

Acknowledgments.

(See Deeds.)
All distinction between suits at law and in equity is
Equitable relief can be had in superior courts of law.
A dm inistration o f E states. Letters of administration Issue in
th« line of preference, first to the husband or wife, second to the next
nf kin relations by consanguinity are preferred to those by affinity,
if there are several of the next of kin in the same degree, preference
u riven to that one selected in writing by those most interested in
the estate. If no preference is expressed the ordinary exercises
his discretion. If no application is made by next of kin a creditor
may be appointed, and if no application is made the ordinary will
vMt the administration in a county administrator, an officer authorized
hv statute for that purpose. Administrators must give bond in double
the value of the estate. Out of the estate of each deceased person,
the first charge, after funeral expenses, is a year’s support for the
family to be laid off by commissioners according to the condition
and standing of the family. Foreign administrators may act in this
State on giving bond to the ordinary where they qualify. The bonds­
men must be residents of this State. A citizen of any other State may
art as executor of the will of a deceased citizen of this State when he
has the same interest and will give the same bond as In the case of
foreign administrators.1 Administrators of other States may sue in
this State by filing in the office of the clerk of the court, to which suit
Is brought, a properly authenticated copy of their letters, of adminis­
tration.
Affidavits. Pleas and defenses in the courts of this State which
are required to be under oath, may be made before any official of
the State or county where the oath is made, who is authorized by
the laws of such State or county to administer oaths. Prima Facie
the official attestation of the officer is evidence that he was author­
ized to act. Any non-resident seeking equitable relief, when called
on to verify proceedings, should be sworn before a commissioner of
this State, or a Judge of a court of record where the oath is made,
with the attestation of the clerk of such court that the signature of
the judge is genuine, and that the court over which he presides Is a
court of record.
Aliens. 'The subjects of governments at peace with the United
States and this State are entitled to the rights of citizens of other
States, resident here, In so far as they accord to them the privilege
of purchasing, holding, and conveying real estate.
Appeals. (See Courts.)
Arbitration. Under the law of Georgia disputes and controversies
relating to rights, or property, may be submitted to arbitration.
Arrest. The constitution of Georgia declares that there shall be
no imprisonment for debt. But in an action, to recover personal
property the defendant will be arrested by the officer to whom process
is directed, and will be committed to jail unless he shall give bond
and good security, or deliver up the property, or show to the satisfac­
tion of the court that It is without his power to produce it.
Assignm ent». Assignments for the benefit of creditors are per­
mitted.
A ttachm ents. A summary process of attachment will lie in
the following cases: 1. Where the debtor resides out of the State.
2. Where he is actually removing, or about to remove, without the
limits of the county. 3. When he absconds. 4. When he resists
a legal arrest. 5. Where he is attempting to remove his property
beyond the limits of this State. 6. Where he has disposed o f . o r
threatens to conceal, his property, liable for the payment of his debts,
or shall make a fraudulent lien thereon to avoid paying his _debts.
Attachment will lie to recover the purchase money of an article sold
when the debtor is still in the possession of the property. Attach­
ments may issue upon affidavit by the plaintiff, his agent or attorney,
who must swear that one of the state of facts exists which authorize
an attachment, and also as to the amount of the claim. Bona ana
security, in double the amount sworn to, must accoinpany the affidavit
and the officers require personal security. Non-resident corporations
are liable to attachments, and one non-resident may attach the
property of another non-resident in this State, except for wages
earned without the State.
Banks. Any number of persons, not less than three, may form
a corporation for the purpose of carrying on the business of banking.
Such corporations, when organized, have power to have cortlnual
succession fo r thirty years, with right of renewal; to sue and be sued;
to have and use a common seal; to appoint officers and agents; to make
by-laws; to hold, purchase, dispose of, and convey such real and
personal property as may be necessary.for its uses and business; to
discount bills, notes, or other evidences of debt; to receive and pay
out deposits, with or without interest; to receive special deposits; to
deal in foreign exchange; to lend money upon personal security, or
pledges of bonds, stocks, negotiable security; to take and receive
securities by mortgage or otherwise on property real or personalThe business of the corporation shall be under the management and
control of a board of directors, to consist of not less than three or more
than fifteen of the members of the corporation, who must be owners
and holders of one or more shares. No bank shall be chartered with­
out a Capital subscription In good faith of at least $25,000,. of which
not less than 20 per cent, ana in no case less than $15,000 must.be
paid In before filing the declaration with the secretary of State. The
corporation shall be responsible to its creditors to the extent of its
capital and its assets, and each stockholder shall be Individually liable
for all debts of the corporation to the extent of his unpaid shares of
stock, and shall be further and additionally liable, equally, and ratably
(and not one for another as sureties) to depositors of said corporation,
for all moneys deposited therein in an amount equal to the face value
of their respective shares. All corporations doing a banking business
in this state shall make to the State bank examiner, under oath,
statements showing the resources of the bank or corporation, at the
close of business on any day specified by th bank examiner. No
bank shall loan to its officers any money without good collateral, or
other ample security, and when such loan exceeds, 10 per cent of the
capital stock it shall not be made until approved In writing by a
majority of the board of directors. No bank or corporation doing
banking business shall reduce Its cash in hand, including amount due
by banks and bankers, and the value of all stocks and bonds actually
owned and held, below 25 per cent of aemand deposits.
No Dank
Actions.

abolished.


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Federal Reserve Bank of St. Louis

1597

or corporation doing a banking business shall loan, to any one person,
unless such loan is amply secured by good collateral security, more
than 10 per cent of its capital stock and surplus. Banks may charge
same rate of interest as, individuals, and the rules of bank discount,
that is to say, taking interest In advance within the lawful rates, have
been held not usurious.. No dividend shall be declared by any bank
except from the net profits, nor shall the capital stock be applied to
the purchase of its own shares. If the assets of a bank are Insufficient
to pay its liabilities, a receiver when appointed, shall bring suit against
the stockholders in his own name for their unpaid subscriptions. In
the absence of a contract, expressed or implied, to the contrary, the
bank taking paper for collection is liable for the defaults of its agents
and correspondents to whom the paper has been entrusted for collec­
tion. If any Insolvent bank or banker, with notice of such Insolvency,
shall receive money or general deposits, and fail to pay the depositor
within three days after demand, such banker or officer in charge of the
bank receiving the deposit shall be punished as prescribed in the
penal code. The State has a special lien for all public money de­
posited. State banks are authorized to become members o f the
Federal Reserve Bank.
B ills o f L a d in g an d P ro m iso r y N otes. A bona fide assignee
of a bill of lading of goods will be protected In his title against the
seller’s right of stoppage in transit. It will not be necessary to protest
promissory notes in order to, bind the endorser except in the following
case: 1. Where the paper Is made payable on its face at a bank o^
banker’s office. 2. Where it is discounted at a bank or banker’s
office. 3. Where it is left at a bank or banker’s office for collection.
Accommodation endorsors, sureties and endorsors may be sued in
the same county and in the same action with the maker, drawer or
acceptor. Bills of exchange must be accepted in writing to bind
the acceptor. A contract to pay attorney’s fees cannot be enforced
unless the debtor when served ten days before suit is filed with a
written notice of intention to sue with amount and term of court to
which suit will be brought, shall fail to pay such debt before return
day. A waiver of homestead in a promissory note is a bar to such a
claim as against the collection of such note. Promissory notes and
contracts containing reservation of title to personal property must
be executed before a notary public, justice of the peace, or clerk of a
court of record, and must be recorded as mortgages to hold such
property as against third parties or innocent purchasers.
C hecks. (See Notes, etc.)’
C ollaterals. The holder of a note as collateral security for a debt
stands upon the same footing as the purchaser. Property left in
pledge or pawn may be sold at public sale to the highest bidder, upon
thirty days notice.
C orporation s. Power to create corporations in this State is vested
in the general assembly and the superior courts. Said courts may
grant charters to all corporations except banking, insurance, canal,
navigation, express, and telegraph companies and railroads. The
Secretary o f State may , grant charters for the corporations above
enumerated in manner prescribed b y law in the particular case. A
charter for a private corporation is >obtained by a petition to the
superior court, setting forth the object, particular business, corporation
name, capital, place o f business, time for which incorporation is desired,
not exceeding twenty years. The pétition and order granting the same
constitute the charter. In such corporations the liabilities o f the
stockholder is, measured by the amount o f unpaid stock subscription
due by him
In the charter of many banks now organized the rule
of personal liability varies. In some banks stockholders are liable as
partners: In others liability exists under the general rule, viz. : to the
èxtent of twice the amount of stock held, and in some banks liability
exists only to the extent o f stock and unpaid subscriptions thereon.
The payment o f TO per cent of the capital stock is necessary before
commencing business. General powers o f corporations are conferred
on all corporations organized in this state. All corporations organized
under the laws o f the State or doing business therein are required to
register with the Secretary of State and pay a graded license fee, with
a minimum of $10, maximum $200. Voluntary dissolution o f a
corporation may be granted by the Superior Court upon petition filed
by the Corporation if authorized by two-thirds o f capital stock. Lost
stock certificates must be established by petition to Superior Court.
C osts. A deposit of $10 is required in courts of record from
non-resident plaintiffs before the filing of suits and a deposit of $6 in
all divorce cases.
C ourts. The term, jurisdiction, etc., of the several courts of the
State are as follows: JUSTICE COURTS hold monthly sessions and
have civil jurisdiction up to $100. In criminal matters they are
only committing courts. COURTS OF O R D IN A R Y hold their
sessions monthly and have jurisdiction over wills, administrations of
estates, and of the conduct of administrators, executors and guardians.
COUNTY COURTS have monthly and quarterly sessions. Their juris­
diction is limited to controversies not exceeding $300.
CITY
COURTS'hold four sessions per annum, but the city court of Atlanta
has six terms. The jurisdiction of city courts is unlimited, except in
matters of divorce, titles to land and administration of equitable relief.
The municipal court o f Atlanta, recently established, replaces the
Justices Courts. Its jurisdictional limit is $500. It holds two terms
each month. SUPERIOR COURTS have jurisdiction of all suits
and controversies and have exclusive jurisdiction in equity powers,
divorce cases, and suits involving titles to land, and on the criminal
side exclusive jurisdiction of all cases involving life or imprisonment
in the penitentiary.
D eeds. Deeds to real estate in Georgia must be in writing, and
should be executed in the presence of two witnesses, one of whom shall
be an officer authorized for that purpose. They should be recorded
in the office of the clerk of the superior court of the county where the
land lies, and all deeds, mortgages, and other liens, should be recorded
immediately to be available against third parties and Innocent pur­
chasers To authorize the record of a. deed to realty, It must be at­
tested by or acknowledged before, if executed out of this State, a
commissioner of deeds for the State of Georgia* notary public* clerk
of a court of record, or a consul, or vice-consul of the United States
(the certificates of these officers under their seals being evidence of
the fact). When the deed is executed out of this State before a
notary public, the attestation should be under his hand and official
seal In case of acknowledgment it is better, as a matter of precaution,
always to have two witnesses, besides the officer who takes the acknowl­
edgment. If executed in this State. It must be attested by a judge of
a court of record of this State, or a justice of the peace, or notary
public, or clerk of the superior court, in the county In which the three
last mentioned officers respectively hold their appointment, or if subse­
quent to its execution the deed is acknowledged in the presence of
either of the named officers, that fact, certified on the deed by such
officer, shall entitle It to be recorded. (Act of 1893.) Deeds to secure
loans are in more common use than mortgages because they have
been held to pass the absolute title and protect against year s support
and dower, the eqult of redemption remaining in the maker, can not
be levied upon until the debt secured by the deed ;has been paid
off
Under the law of Georgia these deeds can not be foreclosed as
mortgages, the notes they are given to secure must be sued to Judg­
ment, the land must be re-conveyed to the grantor, and then levied
on but the lien of the judgment relates back to the date of the con­
veyance. In the Federal courts, however, foreclosure can be made
In equity as In the case of ordinary mortgages. Usury will, however,
void such a conveyance.

1598

BANKING AND COMMERCIAL L A W S — GEORGIA

D e p o sitio n s. Testimony is taken in this State by written inter­
rogatories where the witness is a female, or where the witness does
not reside in the county where the suit is pending, or by reason of disa­
bility is unable to attend court. In all counties within this State,
depositions may be taken upon five days’ notice to the other party of
the time and place at which the witness is to be examined. This latter
process cannot be used for taking testimony outside o f the State.
Depositions may be taken within or without the state, without com­
mission, before a notary public or any officer authorized to issue
attachments. I f within the state or if taken without the state, before
any officer o f the state or county where taken, authorized by laws of
Georgia to attest deeds or take acknowledgments, ufton 10 days’
notice to opposite party. In taking answers to interrogatories,
which must be authorized by a commission Issued for such purpose
by the court here, two commissioners must act. Commissioners must
be disinterested and not related to either party, or connected with
the case; attorneys of the parties are Incompetent. None of the parties
to the case, nor their agents or attorneys, can be present when the
commission is executed. The witness can only write his answer In
the presence of the commissioners. It Is usual, and the better practice,
for one of the commissioners to write the answers of the witness as
they are given. Depositions may be written with the typewriter,
and commissioners may adjourn their sittings from day to day. The
following Instructions for taking testimony are Important: Instruc­
tions for taking answers to interrogatories: 1. Insert the commis­
sioners’ names in the commission: any two respectable citizens will
do. 2. State the case as you find it. Then comes the caption, thus:
State o f ........................... >
(Here insert the county and State
County o f ........ ..
>as- where the commission is executed.)
By virtue of a commission from t h e ...................court o f .....................
county, we have caused the person in said commission named to come
before us, who being duly sworn true answers to make to certain
Interrogatories thereto annexed, deposeth and answereth as follows:
(Here Insert answers of the witnesses to each interrogatory in order.
3. Let the witness sign the answers; then say: ‘ ‘Answered, sworn to,
and subscribed before us, this . . . . day o f ................ 19____ ” Then
sign your own names, adding the words “ Commissioner (L. S .)” after
each name. 4. Seal all up together, using two wafers, each com­
missioner 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 mall, 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 o f mail,” naming his post-office. Testimony
thus taken must be sent by maii, or by some person specially author­
ized by the commissioner to carry it to the court.
D e sce n t an d D istr ib u tio n o f P ro p e rty . The husband is the
sole heir to his intestate wife, unless she leave children, and in that
event the husband and children shall Inherit per capita, but the
descendants of children shall take per stirpe. If a man die without
children, or the descendants of children, leaving a wife, the wife is
his sole heir. If there are children, or those representing deceased
children, the wife shall take a child’s part, unless the shares exceed
five in number, in which case the wife shall have one-fifth part of the
estate. If the wife elects to take her dower, she has no further interest
in the estate. Children stand in the first degree to the Intestate, and
Inherit equally. Posthumous children stand upon the same footing
with other children. Lineal descendants of children'stand in the
place of their deceased parents, and take per stirpe, and not per
capita. Brothers and sisters stand in the second degree and inherit
if there be no widow or children, or representatives of children.
The half-blood on the paternal side inherit equally with the whole
blood. The father, if living, inherits equally with brothers and sisters,
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.
D ow er. 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 hus­
band in conveying land, except in cases where, before 1866, he obtained
real estate belonging to his wife, by virtue of the marital relation.
E x e cu tio n s. Must follow the Judgment or decree from which they
Issue. They are good for seven years and may be renewed for a like
period by entry nulla bona.
E x e m p tio n s a n d H om estead s. Under the constitution and laws
of Georgia, each head of a family or guardian, or trustee of a family
of minor children, or of an aged or infirm person, or a person having
care and support of dependant females of any age, who Is not the
head of a family, shall have exemption 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, o f the homestead,
, or exemption, is good.
F o re ig n C orporation s. All corporations, except those chartered
and organized under the laws of this State, are held to be foreign
corporations. Such corporations are recognized by comity only;
they are subject to attachment, but have all the rights of replevy and
defense. They cannot exercise any corporate powers or privileges
which by the constitution and laws of Georgia are denied to domestic
corporations or the exercise of which would be contrary to the public
policy of this State. There is 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 cor­
porations are subject to license fees for doing business and all are liable
for taxes on property owned or held in the State. (See Corporations.)
F ra u d . Contracts, awards, marriages, judgments, sales, and wills
are void when they are brought about and procured by.fraud
Prom­
issory 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 mis­
carriage o f another. 3. An agreement made upon consideration of
marriage, except marriage articles as otherwise provided. 4. . Any
contract for the sale o f lands, or any Interest in or concerning them.
5. Any agreement that Is not to. be performed in a year. 6. A
promise to revive a debt barred by statute of limitations or bankrupt­
cy. 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.
G a rn isb m e n ts. This process may be Invoked in any case. Gar­
nishment may be dissolved by giving bond and a third party may
claim a fund held up under garnishment and may release the fund by


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to wages to the extent o f $1.25 per day and one-half of the remainde?
H olid ays. January 1st (New Year’s Day). January 19th nw J
Birthday). February 22nd (-Washington's Birthday). ADril 9««!
(Memorial Day). June 3rd (Jefferson Davis’ Birthday). Julv S
(Independence Day). First M onday in September (Labor Dsvi
December 25th (Christmas Day). Thanksgiving Day.
In terest. The legal rate of Interest in Georgia Is 7 per cent, but 8 rw>r
cent is legal when contracted for in writing. Parties charring usur*
forfeit the excess if usury is set up. And usury will render a deed
void, and will in a contract or mortgage render a waiver of home
stead, or contract to pay attorneys' fees void.
J u d g m e n ts create liens from their rendition upon the real or ner
sonal property of the defendant; all judgments at the same term rank
equally, and property sold by a debtor after judgment is obtained
against him is only discharged from the lien of such judgment, if reS
estate, after four years’ possession by the vendee, and In cases'of nersonal 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 at
the defendant In any other county, unless the execution thereon to
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.)
J u risd iction . (See Title Courts.)
L icen se. No license is required of commerdalltravelers. Itinerant
traders must pay license fees.
L iens. Under the laws of Georgia mechanics, material-men, ma­
chinists, employes of steamboats, millwrights, builders of gold mine
machines, stone-cutters, and marble works laborers have special Hem
on property improved or worked on. Landlords have a general lien
which takes effect from the levy of distress and a special lien on cropi
for rent of land on which they are raised. Common law liens of inn­
keepers, factors, pawnees, carriers, attorneys and others are recog­
nized. Vendor’s lien on land has been abolished. Attorneys have a
special lien on papers in their hands and on property recovered in suits
brought by them or successfully defended by them.
L im ita tion s. Suits on open accounts are barred after four yean,
on promissory notes and bills after six years, on instruments under
seal after twenty years, on suits for personal injury after two yean.
Seven years’ adverse possession of real estate under color of title, and
twenty yeafs’ 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.
M arried 'W om en. The wife may contract and sue and be sued in
her own name in respect to her separate estate as a femme sole, except
that she can not bind her separate estate by suretyship for her hus­
band, 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 pur­
chase. 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 ol
necessaries. The wife’s separate property is not liable for debts con­
tracted by her as agent of her husband in the ordinary support of her­
self and children, but by special contract in her own capacity, and
not as agent for her husband, she could bind her separate estate, for
that purpose. A married woman can dispose of her property by will.
M o rtg a g es. 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 to
necessary, but it must be cleared that the instrument indicates a lien,
describes the property and specifies the debt it secures. Mortgages
on land are not good against dower, and a wife cannot waive her
dower as against this lien. Mortgages must be executed and attested
in the same manner as deeds, except that in mortgages on personal
property, only the official witness Is necessary. Mortgages with power
of sale are valid in Georgia. Homestead and exemption may be
waived in the mortgage. A ll mortgages on personal property must
be recorded in the county where the mortgagor resides and the prop­
erty Is located. Mortgages on land must be recorded in the county
where the land is situated.
N otaries. Commercial notaries, male or female, are appointed
for four years b y the superior courts. They must have seals and are
authorized to attest deeds and mortgages, and make protest of com­
mercial paper.
N otes an d B ills o f E x ch a n g e. (See Bills of Lading and Promis­
sory Notes.) Promissory notes are negotiable by endorsement of
payee, or holder, notes payable to bearer are transferable by delivery
only
Bonds, specialties, contracts, bills of lading, and warehouse
receipts, are negotiable by endorsement or written assignment in the
same manner as bills of exchange and promissory notes. Endorse­
ments 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. Any draft, bill of exchange or check, drawn upon an
institution or person with which the drawer has not sufficient funds
on deposit to meet same, subjects the drawer to criminal liability
unless the deficit is made up within 30 days.
P rob ate L aw . (See Administration of Estates, Deeds and Mort­
gages.)
P rotests. (See Bills of Lading and Promissory Notes.)
R ecord s. (See Deeds and Mortgages.)
R e d e m p tio n . There is no redemption in this State under judicial
sales except In case of sale of property under tax execution where
parties may redeem in twelve months.
:
R ep le v y . All property seized under attachment, distress, or other
similar process, may be replevied. Property seized under Process
and claimed by the third party may be delivered over upon bond ana
security for its forthcoming to answer final judgment of decree.
R ev isio n . (See Courts.)
,
Sales. Sales may be made to pay debts, but any sale of stocks «
goods in bulk Is deemed fraudulent unless the seller delivers to tne
buyer a list of all creditors and the amount due each. It shall then d»
the duty of the buyer to notify the creditors of his purchase.
notice must be mailed five days before completion of the purchase.
T axes. Taxes are a lien upon all the property of the debtor, real
or personal, and its lien is preferred as stated in section herein rdatms
to distribution of the estates. Sales of property for taxes are con­
ducted in the same manner as other judicial sales. One year in wmen
to redeem is allowed.

BANKING AND COMMERCIAL L A W S — IDAHO

1595

C ollaterals. No statutory regulation.
C o m m u n ity P rop erty . All property acquired after marriage
other than by gift, bequest, devise, or descent, is community property.
The personal earnings o f the wife and the income from her separate
property are her separate property.
C on tra cts. A written Instrument Is presumptive evidence of a
consideration.
C on v ey a n ces. Real estate is conveyed by instrument in writing,
subscribed by the party or his authorized agent in writing. The
community property can be conveyed or incumbered only by husband
and wife joining in the execution. During the continuance o f the
marriage the wife has the management, control, and absolute power
of disposition o f her separate property, and may bargain, sell, and
convey her real and personal property, and may enter into any con­
tract with reference to the same, m 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. Separate property o f wife not liable for
debts o f her husband, wife is not liable as surety unless the obligation
is for her benefit or benefit o f her separate property. An instrument
purporting to grant real property to take effect upon condition pre­
cedent, does not pass the estate upon the performance of- the con­
dition. Such instrument is merely an executory contract. (See
Acknowledgments.) ■
C orp oration s. Private corporations may be formed by three (3)
or more persons, at least one of whom must be a bona fide resident
of this State. Such corporation is formed by executing articles
SYNOPSIS OF
2.
of incorporation, containing: m The name of the corporation
The purpose for which it Is formed. 3. The place where its prin­
cipal 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 sub­
RELATING TO
scribed, 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
BANKING AND COMMERCIAL USAGES
kind of road, telegraph or telephone line intended to be constructed.
2. The estimated length of the road or line. 3. They may provide
in their articles the number of directors which shall constitute a quorum
for
the transaction of business, the decision of the majority of such
Revised by R ichards & H aga , Attorneys at Law, Boise. (See Card
quorum to be a valid act. 4. Whether meetings of the board shall
in Attorneys’ List.)
be held within or without the State. 5. Whether stockholders shall
be individually liable for debts of corporation. Railroad corporations i
must have subscribed, before filing articles, $1,000 per mile; wagon
A cknow ledgm ents. All conveyances and other Instruments
road corporations, $300 per mile; telegraph corporations, $100 per
required to be acknowledged in this State must be acknowledged, If
mile, and the articles must be verified by affidavit of president, secre­
within the State, before a judge or clerk of a court of record, a county
tary, or treasurer named in articles, that such stock has been sub­
recorder, a notary public, or a justice of the peace. If without the
scribed. All articles of incorporation must be filed in the office of the
State, but within the United States, they must be acknowledged before
county recorder, In which the principal place of business Is located,
any such officer, or a commissioner of deeds for this State, or before
and a copy thereof certified.by the recorder, filed with the Secretary
any officer authorized by the laws of this State or Territory to take
of state. All corporations, except insurance, non-productive mining
such acknowledgment. If without the United States, they must be
companies, co-operative telephone and irrigation companies, must
acknowledged before a minister or charge d'afialrs of the United
pay between July 1st and September 1st o f each year/ a license fee
States, resident and accredited in the country where the acknowledg­
based on the amount of authorized capital stock, varying from $10 to
ment is taken, before a consul or vice-consul, a judge of a court of
$150; a failure to make payment by September 1st entails a penalty
record, a duly appointed commissioner, or a notary public. The
of $10, and a failure to make payment by November 30th entails &
certificate of acknowledgment, if made before a justice of the peace,
loss of charter for domestic corporations and a loss o f the right to do
when used In any county other than that In which he resides, must
business within the State for foreign corporations. Between .July 1st
be accompanied by a certificate, under the hand and*seal of the recorder
and September 1st, all corporations must make an annual report, and
of the county in which the justice resides, setting forth that such
a failure to do so takes away such exemptions as are mentioned above.
Justice, at the time of taking such acknowledgment, was authorized
to take the same, and that the recorder is acquainted with his hand­
C orp oration , F oreig n . Foreign corporations desiring to do busi­
writing, and believes that the signature is genuine. Proof of the execu­
ness in this State, may have all the rights and privileges of like domes­
tion of an Instrument may be made though it has not been acknowl­
tic corporations, by filing with the secretary of state, and in the
edged. Form of married woman's acknowledgment! the same as that
office of the county recorder of the county where the principal place
of a single person. (See Conveyances.)
o f business of such corporation is to be conducted, a copy o f their articles
of business of such corporation is to be conducted, a copy o f their
Actions. There is but one form of civil action In this State. An
articles of incorporation, and the designation o f some person residing
action Is commenced within the meaning of the statute when the
in the county in which such principal place o f business is to be located
complaint is filed with the clerk. Every action must be prosecuted
upon whom process issued by authority o f or under any law of this
in the name of the real party in interest.
State may be served. Designation of agent must be filed with Clerk
Affidavits are used only to verify pleadings, to prove service of
o f District Court instead of County Recorder.
summons, notice, or other paper, to obtain provisional remedy.
C ourts. Terms and Jurisdiction. The judge of the district court
Aliens. Code provisions as to holding property by aliens have
of each of the judicial districts of the State must annually fix the
been repealed (Sess.Laws, 1913).
time tor holding the district court in the several counties of his dis­
Arbitration. Persons capable of contracting may submit to
trict; and he may hold such special terms as he deems proper and
arbitration any controversy which might be the subject of a civil
necessary. District courts have original jurisdiction in all civil cases.
action between them, except a question of title to real property in
Probate courts are held in each county continuously, and have
fee or for Hie.
jurisdiction up to $500, in civil cases, and concurrent jurisdiction
with justice’s courts in all criminal cases. Justices’ jurisdiction, $300.
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,
C urtesy does not exist.*
express or Implied, when the defendant is about to depart from the
D ays o f G race abolished by statute.
State with intent to defraud his creditors; also for money pr porperty
D ep osition s may be taken before any judge, justice of the peace,
embezzled or fraudulently misplaced by a public officer or any person
notary public, or United States commissioner, or any other person
m a fiduciary capacity, or when the defendant has been guilty of
agreed upon by the parties, upon notice served upon the opposite
fraud in contracting the debt, or in concealing or disposing of personal
party, stating the court, action, time, and place, and before whom
property, for the taking or conversion of which the action is brought;
the same will be taken, or they may be taken upon commission issued
or when the defendant has or Is about to remove or dispose of his
by the judge with Interrogatories attached.
property with intent to defraud his creditors.
D e v o lu tio n o f P rop erty. (See Succession.)
Assignments an d In s o lv e n cy . An insolvent debtor may be
discharged of his debts by executing an assignment of all his property,
D ow er does not exist. (See Curtesy and Community property).
real and personal, which, with a sworn Inventory of property and
E m p loy ers and E m p loy es. All persons employing mechanics or
schedule of creditors, must be filed in the district court. At a cred­
i&hoiwrs
In working mines, erecting or repairing buildings, constructitors’ meeting, held after thirty days’ notice given, one assignee i*S | tng canals,
etc., must make, record, and publish a stateappointed, and claims proved. Court will be set aside prop erty, ^ment, underrailroads,
oath, setting forth the following: The name of the
exempt, and issue order for direct payment of money, where n o ^ owser ,jof the premises where work is being done or upon which it is
mortgage or pledge had been given, or where such security. If given,
intended to begin work; the name of the person or company engaged
has been rendered neugatory by act of defendant. Assignee must
in or who contemplates engaging in work upon such premises: the
turaish bond, with two sufficient sureties.
conditions under which such person or corporation is prosecuting
Attachm ents. The plaintiff at the time of issuing the summons,
the work as agent, owner, etc., the principal office of the owner and
or at any time afterwards, may have the property of the defendant
the agent In this State; the time and place where payment of laborers
attached as security for the satisfaction of any judgment that may
and mechanics will be made. A copy of this statement must bs
De recovered, unless the defendant give security to pay such judg­
posted at the place where work is prosecuted.
ment. Defendant in a civil action for recovery of money or damages,
E m p lo y e r’ s L ia b ility L aw . Provides for damages not to exceed
trnaer a contract, express or Implied, may be arrested, when about
$5,000 for injuries to employee caused by employer’s negligence. (See
10 ,(9art *rom the State with Intent to defraud, or when the debt
Workmen’s
Compensation A ct).
or obligation was fraudulently contracted.
E x ecu tion s issue at any time within five years after judgment.
Banks and B a n k in g . Idaho has a full and complete law upon
The
only
stay
is by appeal, with secured bond. One year allowed
tue formation and regulation of banks and the formation of banking
for redemption from execution' and foreclosure sale.
J^P0,rations. No banking corporation can have less than five
E
x
em
p
tion
s.
Homestead, not exceeding $5,000, if declaration
Directors. All banks, other than national banks, are under the super­
of homestead is duly acknowledged and recorded; office furniture
vision of the bank commissioner. The banker has a general lien,
and
library,
$200;
necessary household and kitchen furniture not
Dependent upon possession, upon all property In his hands belonging
exceeding in value $300, and provisions for family for six months;
m a customer for the balance due him from such customer in the
certain farm animals, etc., with food for six months; and water
course of the business. (Sess. Laws 1911 amended 1913.)
right o f 160 inches, when actually used in irrigation; also crops grow­
r, ®Bls of L ading. Uniform act recommended by the American
ing or grown on fifty- acres o f land, leased, owned or possessed by the
oar Association.
person cultivating the same; tools or implements of mechanic neces­
nnuiue ®^y Law. Idaho has a blue sky law governing corporations.
sary for nis trade of the value of $500; all instruments o f surgeons,
etc., also all professional libraries, miner's dwelling of value $500, and
rinoiiC0ri>0rated associations and partnerships, domestic or foreign,
o? ftocks, bonds, and other securities, excepting United States
his pipes, cars, etc., of the value o f $200; pack animals and equip­
ments. not exceeding $250; team, wagon, etc., o f drayman; seventymm* state or municipal securities in Idaho, and Idaho real estate
ri“,rc&ages. This law requires the filing o f various statements, accounts
five per cent of the personal earnings of a debtor within thirty days
“ ;A other papers, and makes it unlawful to do business in the State
preceding levy, where earnings are necessary for use of family, resid­
without compliance. (Sess. Laws 1913.)
ing in this State; the shares held by parties of the Building and Loan
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
«hah pe present, must be called by the testator as witnesses, and must
»lem and shall certify that tney signed, in the presence or the testator,
»nd’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 cne 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 thè governor of such
State, under the seal of the,State, that the official of the court where
such probate was made, had original jurisdiction of the subject-matter.
Wills are probated in the court of ordinary in the county where the
testator resides at the date of his death. All wills executed out of this
State by citizens of this State to dispose o f property in Georgia must
be executed according to our law. A foreign will, executed according
to the law of Georgia, will constitute a muniment of title to real prop­
erty without being probated In this State, when recordèd on the record
ol deeds in the county where the land lies, together with an exempli­
fication of record admitting it to probate in another State, certified
according to the Act of Congress.

THE LAW S OF IDAHO


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1600

BANKING AND COMMERCIAL L A W S — ILLINOIS

Association to the value o f $1,000; provided, such person has no
homestead; all benefits arising out of life insurance, represented by
an annual premium o f $250; all property o f fire companies. All the
above property may be sold under foreclosure o f mortgage, which
includes same or execution issued on judgment for purchase price.
G a rn ish m e n t. Any personal property or credits in the hands of
another, belonging to the defendant, is subject to garnishment, as
are debts owing to him from another if due.
G u a ra n ty , T itle an d T ru st 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.
H olid ays. January 1st, February 22nd, M ay 30th, June 15th,
(Pioneer Day). Fourth o f July, first M onday in September (Labor
Day), October 12th, Thanksgiving Day, Christmas, Sundays and
any day on which a general election is held.
H u sban d a n d W ife. All the property of the wife owned by her
before marriage, and that acquired afterwards by gift, bequest, or
descent, or that which she shall acquire with the proceeds of. her
separate property and her personal earnings and the income from
her separate property, shall remain her sole and separate property, to
thè same extent and with the same effect as the property of a hus­
band similarly acquired. The wife has the management, control, and
absolute power of disposition of her separate property, to the same
extent and with like effect as a married man may have in relation
to his real and personal property. The separate property of the
wife is not liable for the debts of her husband, but is liable for her
own debts contracted before or after marriage. There is no estate
by courtesy or in dower. Marriage settlements are provided for,
and when properly executed and recorded may vary the statute
governing the relations of husband and wife concerning property
rights. Minors may execute valid marriage settlements.
In terest. Where there is no express contract in writing fixing a
definite rate o f interest, the rate is 7 per cent per annum. Parties
may agree in writing,for interest at a rate not to exceed 12 per cent per
annum. Judgments bear interest at the rate o f 7 per cent per annum.
J u d g m e n ts are liens on all real estate of debtor within the county,
from time of docketing, and may be extended to other counties by
fifing transcript in recorder’s office.
Lien continues five years.
Justice’s court judgments become liens when certified and recorded.
May be revived by Issuing execution within limitation.
L iens, M e ch a n ics. E very person performing.labor upon 'or fur­
nishing materials used In the construction or repair of any mining
claim, building, or other improvement, has a lien thereon
Farm
laborers have lien upon the crop and products thereof, upon which
they bestow labor.
All liens must be set forth by a statement in
writing, showing the amount due, the facts connected with the matter,
that there are no credits due on the claim, or offsets against the
same; which statement must be verified by the claimant, and recorded
in the office of the county recorder, if on claim of original contractor,
within ninety days, if on claim o f other persons, within sixty days
from the time of the completion of the structure the completion of the
labor, or the furnishing of the materials. Lien must be enforced by
suit within six months, unless credit is given, expires at all events
in two years.
L im ita tio n to Suits. Contracts not in writing and open accounts,
four years; instruments in writing, five years; judgments and decrees,
six years. R evivor: Only by instrument in writing; part payment
does not.
M arried W o m e n . All property, real or personal, acquired before
marriage and acquired after marriage, by gift, bequest, devise, or
descent, and her personal earnings and the income from her separate
property are the wife’s sèparate property; all other property acquired
after marriage, common property; wife must record inventory of
separate personal property. N o estate as tenant b y courtesy allowed
the husband, nor dower to the wife.
M in es a n d M in in g . (Principal regulations under United States
Statutes.) Quartz locations may be 1,500 feet long and 300 feet on
each side of the middle o f 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 o f prospecting claim, and must record notice of location
within thirty days after making location.
M o rtg a g e s. A real estate mortgage must be acknowledged and
certified, and recorded in like manner as conveyances ana 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 b y the mortgagor that the same is made in good faith
without any design to hinder, delay, or defraud creditors. M ust be
filed and a minute record made by recorder, unless mortgagee has
possession. Survives as long as the debt. Mortgages are discharged
by a satisfaction duly executed and recorded, cr b y entry on margin of
the record, witnessed by recorder.
< N eg otia b le In s tr u m e n ts. Negotiable instruments ariTg&w^sped ‘
by the rules of the Uniform Negotiable Instrument Law. as racem- ,
mended by the American Bar Association. (See Laws 1803. p.
' N otaries, when requested, to demand acceptance and payment
of foreign, domestic, and inland bills of exchange or piomissory
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, govern­
ment, or country may be performed by notaries. Attach acknowl­
edgments or proof of powers of attorney; mortgages, deeds, grants,
transfers, and other instruments of writing executed by any person.
Give certificate of such proof or acknowledgment, to take depositions,
affidavits, and administer oaths and affirmations in all matters incident
to duties of the office. To keep a record of all official acts; when
requested, and upon payment of his fees 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 "N otary
Public,” and the name of the county for which he is commissioned
To-authenticate with his official seal all official acts. The commission
is good throughout the State.
P ow er o f A tto r n e y . Powers of attorney for grants of real estate
and to'execute a mortgage must be in writing, subscribed, acknowl­
edged 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.
P rob ate L aw . Probate courts have jurisdiction to open and
receive proof of wills and admit them to proof; to grant letters testa­
mentary and-guardianship and revoke same; appoint appraisers of
estates, compel executors, etc., to render accounts; order sale of prop­
erty of estates and minors; order payment of debts due from estates,
order and regulate distribution of property or estates; compel attend-


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ance of witnesses and production of all instruments Dertalnw
estates ana property or minors, ana make such orders as may benJL £
sarv to exercise all powers conferred. Proceedings of this court
construed the same as courts o f general jurisdiction ana like force
to its records.
W3given

Protest.

(See Notaries.)

R ecord s. All deeds, mortgages, real and chattel, and instrument,
affecting the title to lands must be recorded. Inventory of
separate personal estate of a married woman when recorded beenm«
prima facie evidence that the property therein enumerated is he?
separate property. In case of levy o f attachment upon real estate »
copy o f the writ, with a copy of the notice of levy attached thereto
must be filed in the office of the county recorder.
hereto.
R e d e m p tio n . Property may be redeemed within one year after
sale, oh paying purchaser amount paid on sale and 10 per cent add)
tional. Property may be redeemed by successive redemptionera
within sixty , days from last redemption, and within one year from
sale, by paying an additional 4 per cent. In cases of tax sales th«
owner may redeem In three years.
!
R ep le v in . Action of, must be brought within three years from time
it accrues. Plaintiff may sue for the possession without claiming
immediate possession, or he may claim immediate possession at time of
commencing suit or afterward. Affidavit showing that plaintiff is the
owner, the detention, the unlawfulness of the detention, eto., and bond
with sureties required to obtain Immediate possession. Defendant may
execute undertaking, with approved sureties, for the retention of the
property, and that it will be forthcoming, subject to the order of the
court in which the action is pending, and thereupon retain the posses­
sion of the property Involved.
Seals. The distinctions between sealed and unsealed instruments
are abolished. Written contracts presumptive evidence of con­
sideration.
S u ccession t o P rop erty . If decedent leave spouse and one child
each entitled to one-half of decedent’s separate property, both real and
personal; if more than one child, surviving spouse gets one-third and
remainder in equal shares to surviving children. In the case o'
community property, the surviving spouse takes all the property’
subject to the right o f testamentary disposition o f one-half thereof bv
the decedent. (See Wills.)
T axes. The locus of property for taxation relates to the second
Monday of January, if within the State, and if not to the day of assess­
ment, and is a lien from and after that date. I f one half of taxes be
paid by first M onday o f January the remaining half may be paid
by first M onday of July, following. Six per cent penalty added for
delinquency and delinquency certificate bears interest at 12 per cent
from date o f delinquency.
The owner has two years from the date
o f said certificate to redeem therefrom, and if he does not redeem the
county or the assignee o f the certificate must bring suit not less than
thirty days nor more than ninety days after’ the expiration of said
two years to foreclose the tax Hen.
Proceedings are the same as on
foreclosure o f mortgage, and owner is allowed one year from the sale
in which to redeem before the sheriff’s deed can be given.” (See also
Chaps. 36 and 151 Sess. Laws 1917.)
T ru st C om p an ies. (See Guaranty Companies.)
W are H ou se R eceip ts
The Uniform Warehouse Receipts Act,
recommended by the American Bar Association.
W ills. Every person over the age of eighteen years, and of sound
mind, may make a will. Every will, other than a nuncupative will,
must be in writing, and every will other than an olographic and a
nuncupative will, must be executed by the testator subscribing thereto
or some person by his direction, which must be done Ln the presence
of two attesting witnesses, each of whom must sign his name and
state that the testator requested him to Witness the testator’s signa­
ture, and the testator must also declare In the presence of the wit­
nesses that such is his last will and testament. One-half of com­
munity property may be disposed of by will to his, her or their children,
but not to exceed one-fourth to a parent or parents of either spouse.
W o rk m e n ’ s C o m p en sa tion A ct. See Chapter 81 Session Laws
1917.
/

SYNOPSIS OF

THE LAW S OF ILLINOIS
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by Messrs. M t jsg kave . O p p e n h e im & L ee ,
Attorneys at Law, Chicago. (See Card in Attorneys’ List.)
A ck n ow led g m en ts. Of deeds o f real estate and other instruments,
may be taken before the following officers: Within this State oeiore
a master in chancery, notary public. United States commissioner,
county clerk, justice o f the peace, any court o f record having a seai
or any judge, justice, or'clerk thereof. Without this State, and wicnin
the United States, its territories, dependencies, or the District oi
Columbia, before a justice of the peace, notary public, master m cnancery. United States commissioner, commissioner to take acknowieagments of deeds, mayor of a city, clerk of a county, or before any juage.
justice, clerk or deputy clerk o f the supreme, or district cout
o f the United States, or before any judge, justice, clerk or deputy,
clerk, prothonotary, surrogate, or registrar of the supreme, circuit
superior, district, county, common pleas, probate, orphans or sm-™'
gate court o f any of the States, Territories, or dependencies or cnt
justice, clerk or deputy clerk o f the supreme, or district court
the United States, or before any judge, justice, clerk or deputy ciera.
prothonotary, surrogate, or registrar of the supreme, circuit, sup
rior, district, county common pleas, probate, orphans or surroga
court of any of the States, Territories, or dependencies o f the u nneu
States. In any dependency of the United States, such
,
edgment or proof may also be taken or made before any commission,,
officer in the military service of the United States. When
acknowledgment or proof is made before a notary public, u
States.
ln any dependency o f the United States, such ac
knowledgment or proof may also be taken or made before any

BANKING AND COMMERCIAL L A W S — ILLINOIS
missioned officer in the military service o f the United States. When
w h acknowledgment or proof is made before a notary public. United
s, atos commissioner, or commissioner o f deeds, it must be certified
his seal o f office. I f taken before a mayor o f a city, it must be
R ifled under the seal o f the city; if before a clerk, deputy clerk,
S hn notary. registrar, or surrogate, under the seal o f his court;
ifW ore a justice o f the peace or a master in chancery, there must
ho arided a certificate o f the proper clerk under the seal o f his office,
¿ottins forth that such person was a justice o f the pejice or master
m chancery at the time o f taking such acknowledgment or proof,
in acknowledgment or proof o f execution may be made in conformity
¡rfththe laws of the State, Territory, dependency, or district where
¡t,-a made Without the United States, before any court o f any repubic dominion, state, kingdom, empire, colony, territory, or depend«ncv having a seal, or before any judge, justice, or clerk thereof,
«¡before any mayor or chief officer o f any city or town having a seal,
hafore a notary, public or commissioner o f deeds, or any ambassador,
minister or secretary o f legation, or consul o f the United States, or
vicB consul deputy consul, commercial agent, or consular agent of
uio United’ States. The acknowledgment o f a conveyance by a marS S woman may be made and certified as if she were single. An
acknowledgment taken by any one interested in the conveyance is void.
Actions. Forms o f action and pleadings are substantially as at
c/immon law except in justice courts and the municipal court o f Chi­
c a g o wherein the practice has been much simplified.
A non-resident
is required to give a bond for costs.
Adm inistration o f D eced en ts’ E states. Letters testamentary
i«ue to executor named in will, if he be a resident. If there be no
will or no executor named, or the executor is disqualified or refuses
act administration is granted to surviving husband, or wife, next,
itn’ or some competent person. The surviving husband or wife,
nr the’ person nominated by him or her, has preference.
I f none o f
the above nhmed applies within sixty days from death o f deceased,
¡■hen administration is granted to the public administrator o f the proper
cnnntv The administrator must be a resident o f the State. A
foreign executor or administrator, within the United States, may
nrosecute suits to enforce claims or to sell lands to pay debts. The
Uniform Foreign Probate Act is in force in Illinois. The executor
n r administrator must file an inventory within three months from the
date of his appointment and must fix upon a term o f court, within
six months from the time he qualifies, for the adjustment o f claims,
and publish notice thereof. The claimant should produce and file
his verified claim, which, if not objected to, may be allowed without
further evidence. I f objected to, the claim is set down for trial. If
the claim is not presented at the time fixed upon, it may afterwards,
within one year, from the date o f the issuance o f letters o f adminis­
tration be filed with the clerk, whereupon a summons issues against
the executor or administrator, and the matter is heard at a subsequent
term All c’ aims not exhibited within one year from granting of
administration are barred. Claims are classified as follows: 1. Fu­
neral expenses and cost o f administration., 2. Widow s or children s
award 3. Expenses o f last illness, other than physician s bill, and
demands due household laborers or servants o f deceased for labor.
4 Debts due common school or township funds. 5. Physician s bill
for last illness. 6. Trust funds. 7. All other debts. Claims have
priority of payment in the above order.
Affidavits. Within this State oaths and affirmations- may be
administered by any judge, justice of. the peace, master in chancery,
clerk of a court, police magistrate, or notary public, in their respective
jurisdictions. Without the State the oath or affirmation may be
administered by any officer authorized by the laws o f the particular
State and if such officer has a seal, his certificate under his official
seal is received as prime facie evidence o f his authority.
Aliens. The present law went into effect July 1, 1897. It does
not affect the rights of aliens as to personal property, who still take
the same as citizens. Its provisions are subject to treaties made by
the United States with foreign countries. All aliens, subject to cer­
tain restrictions mentioned in the act, may acquire and for a limited
time hold real estate situated in this State, by deed, devise, or descent,
and may transfer. devis8. or encumber it.
•
. _" _ ,
Arrest and B ail. No person can be imprisoned for debt unless
upon refusal to deliver up his estate for the benefit o f his creditors
in such manner as shall be prescribed by law, or m cases where there
is a strong presumption o f fraud.
"
.
. .
. ... ' .
Assignm ents. The operation o f the Illinois Act relating to
voluntary assignments for the benefit o f creditors has been suspended
by the national bankruptcy law.
,, '
v
, .
Attachm ents. A creditor, resident or non-resident, whose claim
is due, may bring attachment in a court o f record if the amount
exceeds $20, and in justice court for any amount not exceeding *200,
on any'of the following grounds: 1. Where the debtor is a non-resident
of this State. 2. Where the debtor conceals himself,, or stands m defiance
of an officer so that process can not be served upon him. 3. Where the
debtor has departed from this State with the intention o f having his
effects removed from this State. 4. Where the debtor is about to depart
from this State with the intention o f having his effects removed from
this State. 6. Where the debtor is about to remove his property from
this State to the injury o f such creditor. 6. Where the debtor has,
within two years preceding the filing o f the affidavit required, fraudu­
lently conveyed or assigned his effects, or a part thereof, so as to hinder
or delay his creditors. 7. Where the debtor has within two years prior
to the filing o f such affidavit fraudulently concealed or disposed o f his
property so as to hinder or delay his creditors. S. Where the debtor is
about fraudulently to conceal, assign, or, otherwise dispose o f his
property or effects so as to hinder or delay his creditors. 9. Where the
debt sued for was fraudulently contracted on the part o f the debtor,
provided the statements o f the debtor, his agents or attorney, which
constitute the fraud, shall have been reduced to writing, and his signa­
ture attached thereto by himself, agent, or attorney. The creditor
must give bond in double the amount o f the claim. Real estate or
personal property may be attached or funds garnished. The property
or funds may be released by tbe debtor giving a forthcoming bond, or
entering into a recognizance in court to pay the judgment.
Banks. Under the state constitution stockholders have a double
stock liability, and every bank must make, under oath, and publish
each quarter a full and accurate statement o f its affairs. Banks may
be formed under the statute for the purpose o f discount and deposit,
buying and selling exchange, and doing a general banking business,
except the issuing o f bills to circulate as money; may loan on both
personal and real estate security, and may accept and execute trusts.
The stockholders at the annual meeting on the first Monday o f each
January (unless some other date be fixed by the by-laws) elect the
directors. The directors must furnish to the State Auditor each year
a list of stockholders and such other information as he may require.
Each director must own ten shares of stock;. Directors are required
to hold monthly meetings. Any director, officer, or employee making
a false statement as to the affairs o f the bank, with intent to deceive,
may be punished by imprisonment. N o bank can begin _business
until the Auditor has issued his certificate that its stock has been
fully paid; and such certificate has been filed with the Recorder of
Deeds of the County where the 1bank does business. The Auditor
may withhold his certificate if he be not satisfied as_ to the character
and standing o f the directors and officers. The president and cashier
thirty days after organization must file with the Recorder o f Deeds a
certified list o f stockholders and the holdings o f each, and thereafter
record all transfers. No transfer o f stock releases stock liability.


102
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1601

Rants are examinèd under the direction o f the Auditor at least once
each year. A bank can hold only such real estate as is necessary for
its banking house, and such as may be acquired in the collection of
its debts. N o more than 15 per cent o f the capital stock and surplus
can be loaned to one person, firm, or corporation, but discounts of
bills o f exchange drawn against actual values, and commercial paper
discounted for parties actually owning the same, do not come within
this provision. A violation o f this provision does not impair the
claim, but renders the directors and officers assenting to the same
personally liable for any loss incurred thereby! A loan can not be
made to the president or any officer or employe, unless approved by
the Board o f Directors. The minimum amounts provided for the
capital stock o f banks are as follows : In cities o f 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. Upon impairment o f the capital stock the Auditor m ay
require assessment o f stockholders or a reduction o f the capital. If
he shall deem the bank is being conducted in an unsafe, fraudulent
Or illegal manner, he may file a bill for an injunction, dissolution and
receiver, but such a bill can be maintained only in the name o f the
Auditor. Upon deficiency o f assets, the court may require, in such a
suit, that the receiver proceed against the stockholders on their stock
liability. There are provisions for consolidation, change of name and
voluntary dissolution. A banker is liable to fine and imprisonment
if he receive a deposit after he knows the bank has become insolvent
and thereby the depositor suffers loss.
One drawing and delivering a check, draft, or order oil a bank with
intent to defraud, and knowing at the time that he had not sufficient
funds in or credit with the bank to pay the check, draft or order in
full, is guilty of a misdemeanor and is subject to a fine o f $l;000, or
imprisonment for one year, or both.
B ills o f L ad ing. The Uniform Bills o f Lading Law is in force in
Illinois.
A B lu e Sky Law went into effect January 1, 1918, governing the
sale of stocks of corporations, A statement o f the assets, liabilities
and earnings (if any) must be filed with the Secretary o f State and a
permit granted by him before securities can be offered for sale.
C h a ttel M ortgages. N o mortgage, trust deed, ór other conveyance
o f personal property having the effect of a mortgage or lien, is valid
against third persons, unless possession be delivered to, and remain
with, the grantee; or the instrument provides fqr the possession of th e,
property to remain with the grantor, and the instrument is acknowl­
edged and recorded. The instrument must be acknowledged, in coun­
ties having a population of less than two hundred thousand, before a
justice o f the peace, police magistrate, a clerk or deputy clerk of' a
municipal court, or county judge o f the county in which the mortgagor
resides; in counties having a population o f 200,000, or more, before
a justice of the peace of the town or precinct, or if there be no justice
of the peace, before the clerk or deputy clerk of the municipal Court
in the district where the mortgagor resides. I f the mortgagor is a
non-resident o f the State, the mortgage may be acknowledged before
any officer authorized by law to take acknowledgments of deeds.
After acknowledgment the instrument must be filed for record with
the recorder of the county in which the mortgagor resides when the
instrument is executed, or, in case o f a non-resident of the State, then
in .the county where the property is situated. The mortgage is a
valid lien until the maturity o f the entire debt or obligation, not
exceeding three years from the filing of the mortgage, and may be
renewed for one year. A note secured by chattel mortgage must
state on its face that it is so secured, otherwise the mortgage is void.
A mortgage may be released on the margin o f the record, or by a release
deed. A mortgage on a stock o f goods permitting mortgagor to retain
possession and buy and sell is void as to creditors.
C om m ercia l P aper. (See Negotiable Instruments.)
C on d ition a l Sales and like agreements, including, generally,
leases, reserving title or lien in seller who parts with possession, are
not valid in this State as to purchasers or parties acquiring liens
while the property remains in the possession o f the vendee or lessee.
C on sig n m en ts. Agreements to sell on consignment are valid.
I f a commission merchant, or party selling on commission, converts
the property consigned, or after demand fails to aepount for the pro­
ceeds, he is subject to fine and imprisonment, and. liable for double
the value o f thè property so .converted.
C onveyances. See Deeds.
.
. _■ „
,
„ ,
C orporation s for pecuniary profit may be organized for any lawful
purpose except banking, insurance, real estate brokerage, operation
of railroads, and loaning money. A “ building corporation” may be
organized subject to certain restrictions, to own, erect, lease, or oper­
ate only one building and the site therefor of not more than eighty,
thousand square feet of land.
Such corporations cannot be con­
solidated, nor their stock acquired by holding companies. .Real
estate agency and mortgage loan corporations as defined in the act,
may be formed under certain specified restrictions. There is a special
act permitting not less than ten residents o f the county in which the
principal office is located to form a corporation for the purpose of
acquiring real estate and erecting thereon residences for lease or sale.
The method of forming a corporation is as follows: From three to
seven persons execute and acknowledge a statement giving the name
of proposed corporation, the object, its Capital stock, nùmber of shares
(each not to be less than $10 nor more than $100), location o f principal
office, and duration (not exceeding nihety-nine years); which state­
ment is filed with the Secretary o f State. Upon the filing o f the
statement the Secretary requires the payment of the license fee,
which is $30 for all companies, having a capital stock o f $2,500 and
under, $50 for amounts between $2,500 and $5,000, and $1.00 addi­
tional for each $1,000 of capital stock in excess o f $5,000. Upon
receiving the license to organize, subscriptions are obtained, and after
the entire stock is subscribed, the commissioners call a meeting of
the subscribers, ten days’ written notice being required, to elect
directors. In all elections of directors the right of cumulative .voting
is reserved. Voting may be by proxy. A directory need not be a
stockholder, nor a resident of the State. The commissioners then
make a full report of the proceedings to the Secretary qf State, verified
by a majority o f the commissioners, and include a copy of thè notice
for the first meeting o f stockholders, a copy of the subscription list, a
statemerit o f the amount of the capital, not less than one--haif actually
paid in, the amount of such capital not paid in, what disposition has
been made o f stock subscribed and not paid, and if any proportion of
the capital has been paid in property, the same shall bè appraised by
said commissioners, and they shall report fair cash value thereof, and
the names of directors or managers elected and their respective
terms o f office. The Secretary o f State thereupon issues a final
certificate of incorporation, to which is attached copies o f uR »papers
filed with nim. This certificate must be filed with the Recorder of
Deeds in the county o f the principal office of the Gpmp§,nJfT., (The
Company is then fully organized and may proceed to businqsé»
Corporations can hold only such real ,estate as is required for then
business. They cannot hold stock o f other corporations, but they
may buy and sell their own stock if they act in good faith. ■ ‘
"l
Stock may be attached or taken on execution; but where it' has been
sold or pledgèd in good faith and the certificate delivered, it is not
liable to execution except as to any excess over the amount for which
it has been pledged. Each stockholder is liable for thè debts o f the
corporation only to the extent o f the amount that remains unpaid
upon the stock held b y him. N o assignor o f stock is released from this

1602

BANKING AND COMMERCIAL L A W S — ILLINOIS

liability b y the assignment, but he remains. Jointly liable with the
assignee. A purchaser in good faith, without notice, of stock issued
as fully paid is protected. Stock may be paid for in property other
than money, but the property can be taken only at its fair cash market
value. N o person holding stock as collateral security can be subjected
to a stockholder’s liability. The pledgor has a right to vote the stock.
The Uniform Stock Transfer Act is in force in Illinois as to all certif­
icates issued after July 1, 1917. I f the indebtedness o f a corporation
exceeds its capital stock, the directors and officers assenting thereto
are personally liable to creditors for such excess. Every stockholder
has the right at all reasonable times, by himself or attorney, to examine
the books and records o f the company. A corporation organized for
the purpose o f accepting and executing trusts may be appointed
assignee or trustee b y deed, and executor, guardian, or trustee b y will,
and any court may appoint such company receiver, assignee, guardian,
conservator, executor, administrator, or other trustee, provided such
appointment apply to the estate only, and not to the person. Corpo­
rations are taxed on their tangible property, real and personal, within
the State, and also upon the fair cash value o f their capital stock.
Including franchises,. over and above the assessed value o f their
tangible property. Shares o f stock o f domestic corporations, whose
tangible property or capital stock is taxed, are not subject to taxation
in the hands o f owners.
Foreign Corporations doing business in this State are subject
to all the liabilities, restrictions, and duties imposed on domestic
corporations o f like character, and have no other or greater powers.
But a foreign corporation authorized by its charter to invest and loan
money may do so here. This does not include, however, banking
powers and privileges. A foreign corporation desiring to do business
In Illinois must make application to the Secretary o f State, signed and
sworn to by the President and Secretary, stating what business such
corporation proposes to pursue under its charter, the amount o f capital
stock, whether it is transacting or it intends to transact business in
any other state or country, the proportion o f its business intended to
be carried on in Illinois, the amount paid in upon its capital stock,
what property and assets, and an estimate o f the value thereof, will
be employed m the business in Illinois, if any o f its capital subscribed
has not been paid in, what disposition is to be made thereof, the names
o f the President, Secretary, and Directors, and their residences, where
its principal office in Illinois will be located and the name and address
o f some attorney in fact upon whom service can be had in all suits
commenced in this State; and, if required b y the Secretary o f State,
the names and residences o f all stockholders as shown by its records.
It must file with the Secretary o f State a copy o f its charter or articles
o f incorporation, Before any foreign corporation shall be authorized
to do business in this State it must pay to the Secretary o f State
upon the proportion o f its stock represented by its property and
business in Illinois, fees equal to those required o f similar corporations
formed under the laws o f this State. All amendments to charter of
foreign corporations must be filed with the Secretary o f State. I f
proportion o f stock represented b y property located and business
transacted in this State be increased, an additional fee o f $1.00 per
$1,000 must be paid, and the Secretary o f State is authorized to
propound to the corporation, from time to time, interrogatories to
elicit the facts in this regard. I f a foreign corporation has shares o f
no par value, this value is considered $100 for the purpose o f fixing
the license fee. Every such foreign corporation neglecting to comply
with this law is subject to a penalty o f not less than $1,000 and not
exceeding $10,000, to be recovered before any court o f competent
jurisdiction, and in addition to such penalty if any such foreign
corporation shall fail to comply with the law it can maintain no suit
either at law or in equity upon any claim, legal or equitable, whether
arising out o f contract or tort, in any court o f this State.
C ou rts. Supreme court (seven judges) ; four appellate courts
(intermediate court o f appeals, three judges each); circuit courts (in
Cook County also superior court o f equal jurisdiction); criminal
courts; county „courts (which also exercise probate jurisdiction in
counties having less than 70,000): probate courts (in counties having
over 70,000); municipal courts (Chicago has a municipal court with
a chief justice and twenty-five associate judges and special practice),
and justice courts.
B ays o f G race are abolished. (See Negotiable Instruments.)
Deeds conveying land should be signed, sealed, and acknowledged
b y grantor. Scrawl seal is sufficient. N o subscribing witnesses are
required. Statutory forms o f warranty and quit claim deeds and
mortgages are provided. The words employed are (1) conveys and
warrants, (2) conveys and quit claims, (3) mortgages and warrants.
N o deed releases the right o f homestead unless it contains a clause
substantially as follows: “ Hereby releasing and waiving all rights
under and by virtue o f the homestead exemption laws o f the State
o f Illinois,” in which case the certificate o f acknowledgment should
contain the clause, “ including the release and waiver o f the right
o f homestead.” T o release dower the husband or wife must join in
the conveyance, except in the case o f a mortgage for purchase money;
otherwise the husband and wife may convey as unmarried. Deeds
and other instruments affecting real estate should be recorded in the
county where the real estate is situated; until so recorded they are
void as to creditors and subsequent purchasers without notice.
D ep osition s. In chancery cases if the witness resides in the
county, depositions may be taken on five days' notice; otherwise on
ten days’ notice and one day in addition for every fifty miles. At
law, on like ten days’ notice, where the witness resides in another
county or is about to depart from the state. Where the witness
resides out o f the county or state, the deposition may be taken before
a notary public or commissioner on a commission issued on ten days’
notice, either on written or oral interrogatories; one day additional
notice o f the time and place o f taking the deposition being required
for each one hundred miles. The attendance o f a witness can not be
compelled before a notary public or commissioner in this State under
a commission issued from a court o f record in another state.
D escen t an d D istrib u tio n . Property in this State, real and
personal, o f residents or non-residents dying intestate, descends and
is distributed as follows: 1. T o the children and their descendants
equally, the descendants o f a deceased child or grandchild taking
the share o f their parents in equal parts. 2. When there is no child,
nor descendant 6 f a child, and no widow or surviving husband, then
to the parents, brothers, and sisters and their descendants equally,
allowing to the parents, if living, a child’s part, or the survivor a
double portion; and if there is no parent living, then to the brothers
and sisters and their descendants. 3. When there is a widow or sur­
viving husband, and no child or descendant o f a child, one half of
the real estate and the whole o f the personal estate goes to the widow
or surviving husband absolutely, and the other half o f the real estate
descends as in other cases where there are no children or descendants
o f children. 4. When there is a widow or surviving husband, and also
a child or descendants o f a child, the widow or surviving husband
receives one-third o f the. personal estate absolutely (see Dower and
Curtesy). 5. I f there is no child or descendant o f a child, and no
parent, brother, or sister, or descendant o f parent, brother, or sister,
and no widow or surviving husband, the estate descends in equal
parts to the next o f kin in equal degree (computing by the Civil Law),
there being no representation among collaterals, except with descen­
dants o f brothers and sisters, and no distinction being mad^ between
kindred o f the whole and the half blood. 6. In case o f a widow or
surviving husband, and no kindred, the whole estate goes to the widow
or surviving husband.


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u o w e r. a surviving husband has dower (i. e., life intera^, in tWrd part o f all lands whereof deceased was seized o f anAstati? #5
inheritance during marriage) the same as a widow. Equitable
and land contracted for before death, are subject to dower Dow™
may be barred by jointure assented to; b y devise, unless widow™
surviving husband renounces benefit o f devise within one year from
date o f letters o f administration; by divorce as to the* nariViS
fault; and by abandonment coupled with adultery There ^ no
dower In land as against a purchase-money lien. The husband ™
wife may renounce any devise under the will o f the other and take
there be children, dower and one-third o f personal estate, or. if no
children, one-half o f both real and personal estate absolutely!
,
E xecu tion s. (See Judgments and Executions.)
E xecu tors an d A d m in istra tors. (See Administration.)
«innAm pr*ioni1, There is a homestead exemption to the extent of
$1,p°q. It may be extinguished by conveyance joined in by husband
and wife properly acknowledged. (See Deeds.) The following
personal property is exempt: I. The necessary wearing apparel
Bibles, school books, and family pictures. 2. One hundred dolimi»
worth o f other Droperty, to be selected by the debtor, and in addition
when the debtor is the head o f a family and resides with the same’
$300 worth o f other property, to be selected by the debtor. Exemp­
tions can not be claimed out o f partnership property. The wages
o f a wage earner being the head o f a family and residing with the
same are exempt from garnishment to the amount o f $15 per week
F rauds, S ta tu te o f. The following contracts should be in writing1. A promise of an executor or administrator to answer any debt or
damages out o f his own estate. 2. A promise to answer for the debt
default, or miscarriage o f another. 3. An agreement made in con­
sideration of marriage. 4. An agreement not to be performed within
one year. 5. A ny contract for the sale o f lands, or any interest
therein for a longer term than one year. 6. Express trusts relating
to real estate. “ A contract to sell or a sale o f any goods or choses
in action o f the value o f five hundred dollars or upwards is not enforcible by action, unless the buyer accepts part o f the goods or choses
in action so contracted to be sold or sold, and actually receives the
same, or gives something in earnest to bind the contract, or in part
payment, or unless some note or memorandum in writing of the
contract or sale be signed by the party to be charged or his agent in
that behalf. The act applies to sales for future delivery and to goods
to be obtained or manufactured by the seller, but not to sales of goods
to be- manufactured on special order if they be not suitable for sale
to others in the usual course o f business.”
G a rn ish m en t. The funds or property o f a debtor in the possession
o f a third party may be garnished in an attachment suit, or in a separate
proceeding after judgment has been obtained against the principal
debtor. (See Attachments.)
H olid ays, L egal. January 1st, February 12th, February 22d,
M ay 30th, July 4th, October 12th, December 25th, first Monday in
September (Labor D ay), Thanksgiving Day, and election days; also
every Saturday from 12 o ’clock noon to 12 o ’clock midnight. Where
holidays fall on Sunday, the day following.
H u sban d an d W ife. (See Married Women.)
In terest. Extreme contract rate, ,7 per cent; legal rate, 5 per cent.
Interest is allowed at the legal rate on moneys after they become due
on any bond, bill, promissory note, or other instrument in writing;
on money loaned or advanced for the use o f another; on money due
on the settlement o f an account, from the date of ascertaining the
balance; on money received to the use o f another, and retained with­
out the owner’s knowledge; and on money withheld by an unreason­
able and vexatious delay o f payment. Judgments or decrees draw
interest at 5 per cent. Penalty for contracting for more than 7 per
cent is the loss o f the entire interest, and only the principal sum can
be recovered. A written contract, wherever payable, made in this
State between citizens o f this State and o f a foreign State (or secured
by a mortgage on lands in this State) is controlled by the law of this
State as to the rate o f interest, and the penalty for usury. Usury
must be specially pleaded. But- corporations cannot claim a for­
feiture o f legal interest on account o f usury. In all computations
o f time, and o f interest aqd discounts, a month is considered to mean
a calendar month, and a year twelve calendar months, and a day
the thirtieth part o f a month. A foreign corporation is subject to
the same penalties for usury as a citizen o f this State.
J u d g m en ts an d E xecu tion s. A judgment is a lien on real
estate situated in the county where the judgment is rendered, for
seven years from its date. I f an execution is not issued on a judgment
within one year the judgment ceases to be a lien. A transcript of a
judgment in another county may be filed and thereupon becomes a
lien upon real estate o f the defendant in the county where filed, and
execution may issue thereunder. An execution becomes a lien on
personal property from the time it is delivered to the officer to be
executed. All goods and chattels, including money and stock in a
corporation, may be levied on. Personal property may be sold under
execution on ten days’ notice. A forthcoming bond may be given
by the defendant to the officer. A third party claiming the property
levied on may have a trial as to the right o f property in the county
court. Judgments may be confessed by a debtor or his authorized
attorney without process in term time or vacation.
L iens. A landlord has a lien for rent upon crops growing on the
demised premises. Hotel, inn, and boarding-house keepers have a
lien upon baggage and other valuables of guests. Stable-keepers have
a lien upon horses, carriages, and harness for the keeping thereof.
Garage keepers are entitled to liens on automobiles, parts and acces­
sories, for keeping, repairing, materials xfurnished thereto, and the
expenses, bestowed thereon at the request o f the owner, or the person
having the possession thereof. Agisters and persons keeping, yarding,
and feeding domestic animals have a lien therefor. All persons furnish­
ing supplies, or doing work for any railroad organized under the laws
o f this State, necessary for the construction,, maintenance, operation,
or repair of the road, have a lien therefor on all the property of the
company, which is good as against mortgages and other liens acquired
after the commencement o f the delivery o f supplies, or the domg of
the work. Attorneys have liens on all demands, claims, and causes of
action o f their clients, after the service o f notice upon the adverse
party. Contractors and sub-contractors, including architects,_ super­
intendents, timekeepers, etc., have liens on any real estate, interest
therein, or improvements thereon, for all kinds of labor and_ services
performed, and materials furnished for the erection o f any building,
or the improvement o f any real estate, or thing connected therewith.
A person furnishing material, apparatus, fixtures, machinery or labor
to a contractor for a public improvement, has a lien upon the money,
bonds' or warrants due or to become due under such contract: Pro­
vided, the claimant serves upon the municipality a notice of ms claim
before payment be made to such contractor; but the lien attaches omy
to the portions o f the money, bonds, or warrants against which no
voucher or other evidence o f indebtedness has been issued and delivered
to the contractor.
"
*
L im ita tio n s. In personal actions as follows: Libel and'slander,
one year; actions for damages for injury to persons, two years (where
death results, one year after death); for false imprisonment, malicious
prosecution, for a statutory penalty, for abduction, seduction, or
criminal conversation, two years; actions- on unwritten contraes»,
express or implied, on awards o f arbitration, to recover damages ior

BANKING AND COMMERCIAL L A W S — INDIANA
¡niiirv ta property real or personal, to recover possession o f personal
ninnerty or damages for the detention o f conversion thereof, and
Si civil actions not otherwise provided for, five years; actions on
hnnds promissory notes, bills o f exchange, written leases, written
mntracts, or other evidences o f indebtedness in writing, ten years;
hiitanv payment or new promise to pay in writing renews the right o f
action on such instrument for ten years from the time o f such payment
nr promise. A domestic judgment o f a court o f record* twenty years;
o f a foreign court o f record, five years.
lim ited P artn ership . There are statutory provisions as to the
formation o f limited partnerships, but such partnerships are not
common in Illinois.
Married W om en . A married woman may sue. be sued, or defend,
os if she were unmarried. When the husband deserts, the wife may
nrnsecute or defend in his name. The husband has the same right
nnon the desertion o f the wife. The husband is not liable for the
wife’s torts except in cases where he would be jointly responsible
if the marriage did not exist. The husband or wife is not liable for
the debts o f the other incurred before marriage, or for the separate
debts of each after marriage, except that the husband and wife are
ininclv and severally liable for the expenses o f the family and the
education of their children. The wife may contract as if unmarried,
except that she can not carry on a partnership business without the
consent of her husband, unless he nas abandoned her, or is insane,
I* confined in the penitentiary. She may receive and use her own
earnings free from the interference o f the husband or his creditors.
Neither the husband nor the wife can recover compensation for any
labor performed or services rendered for the other. She may own
In her own right real and personal property obtained by descent,
rift or purchase, and manage, sell, and convey it to the same extent
that the husband can property belonging to him; but no transfer of
personal property between the husband and wife living together is
good as against third persons, unless acknowledged and recorded as
chattel mortgages are required to be. A married woman who without
her fault fives apart from her husband may maintain an action for
reasonable support and maintenance. The wife may insure her
husband’s life. She may become surety for the husband. She may
execute a will, if over eighteen years o f age, at which age she attains
majority.
Mortgages. Real estate mortgages should be executed and ac­
knowledged the same as deeds. The wife must join to bar
dower, except in mortgages for purchase-money. Trust deeds are
often preferred to mortgages because o f the facility in the transfer
of the security and, in case o f non-resident creditors, in obtaining a
release, the trustee geneially being a resident. Real estate mortgages
may be released upon the record or by release deed. Mortgages and
trust deeds must be foreclosed by scire facias or by regular foreclosure
suit in a court o f chancery. In extreme cases, where the mortgaged
property is clearly o f less value than the debt secured and the mort­
gagor is insolvent, there may be a strict foreclosure which cuts off the
right of redemption, in which case the mortgagee takes the property
in discharge o f the debt. In other cases, after decree o f foreclosure,
the officer designated to execute the decree delivers a certificate there­
of to the creditor and files a copy thereof for record. The debtor may
redeem within twelve months, or if no judgment creditor redeems,
t.hfim within fifteen months; at the end o f which time the real estate
is sold to satisfy the decree and costs, with six per cent interest. The
holder in due course o f a note secured by a mortgage or trust deed on
real estate in Illinois stands in no better position, so far as the enforce­
ment of his security is concerned, than the payee or original holder:
but this doctrine does not apply to corporate bonds payable to bearer.
Negotiable In stru m e n ts. The “ Uniform Negotiable Instru­
ments Law” adopted in New York and most o f the other states is in
force in Illinois, as to all commercial paper executed after July 1,
W07, with the following modifications: 1. All Promissory Notes,
Bonds, Due Bills, and other instruments in writing, whereby one
promises or agrees, to pay any sum o f money or articles o f personal
property, or any sum o f money in personal property, or acknowledges
any sum of money or article o f personal property to be due, are_ nego­
tiable. Except as to Promissory Notes payable in money due diligence
must be used by the holder against the maker, if he be a resident
and solvent, by suit at first term o f Court after maturity, in order to
hold the endorser. 2. Accommodation paper may be issued after
maturity, if such was the intention o f the accommodating party.
3. The addition o f words o f assignment or guaranty to a blank indorse­
ment does not affect the signature as an indorsement unless otherwise
expressly stated. 4. The aefenses o f fraud and circumvention in
the execution o f negotiable paper, or that the consideration arose
out of a gambling transaction prohibited by sections 130, 131, and
136 of our Criminal Code, may be asserted as against a holder in due
course. 5. The fact that a depositor makes his note payable at a
bank does not authorize the bank to pay it out o f his funds on deposit.
6. An alteration o f an instrument avoids it only when it is material or
fraudulent, and made by the holder. 7. A promise in writing to accept
a bill made either before or after it is drawn is deemed an actual accept­
ance as to the person receiving the bill on the faith thereof. 8. Section
137 of the Uniform Negotiable Instruments Law, providing that the
destruction by the drawee o f a bill of exchange left with him for accept­
ance, or his refusal to return the same within twenty-four hours after
delivery to him or within such further period as the holder might
allow, should be deemed an acceptance o f the bill, is omitted from the
Illinois act.
.Partnership. The Uniform Partnership Act and the Uniform
Limited Partnership A ct are in force in Illinois.
Probate Law. (See Administration o f Estates.)
Recording A ctsl In counties having a population o f less than
60,000, the clerk o f the circuit court is ex officio the recorder. In
other counties a “ recorder o f deeds” is elected. As to what instru­
ments must be recorded, see respective titles.
Replevin. The action lies for personal property wrongfully de­
tained. The action may be brought in any county where the property
is, or where any o f the defendants reside or may be found. Before
the execution o f the writ, the plaintiff, or some one in his behalf,
must give the officer a bond with sufficient security (a real estate
owner of the county is geneially required) in double the value o f the
property.
Sales in B ulk. Sales o f the major part or'all o f a stock in trade,
chattels or fixtures not in the ordinary course o f business, are fraudu­
lent and void as to' creditors unless the buyer obtains from the seller
an affidavit giving a list o f his creditors with addresses and amounts
cue each, and the buyer, five days before payment, gives notice to
each creditor personally or by mail o f the contemplated purchase.
Taxes. All real and personal property in this State, including
moneys, credits, bonds, stocks, investments, shares^ o f stock _in cor­
porations (see Corporations), and o f banks doing business in this State,
is subject to taxation. Real and personal property is listed with the
County Assessor and assessed between April 1st and June 1st as_ of
April 1st. The taxes are payable on or before M ay 1st o f the ensuing
year; after which time penalties are added. There is an Inheritance
lax Law, the rates varying according to the relationship o f the heir,
devisee, or legatee, and the amount o f the legacies, ranging from 2 per
cent in the cases o f widow and children, as to legacies exceeding $20,000,
to 10 per cent on large amounts bequeathed to persons not related
to the deceased.


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1603

W arehouse R eceip ts. The Uniform Warehouse Receipts Law
is in force in Illinois.
Wills. Every male over twenty-one, and female over eighteen,
is competent to make a will. It must be signed by the testator or
by some person in his presence and by his direction, and attested in
his presence at his request by at least two witnesses. The witnesses
should be disinterested. A devise to a witness is void unless the will
be otherwise duly attested b y two witnesses exclusive o f such person.
Where the subscribing witnesses are dead, secondary evidence o f the
execution is admissible. The will is proved, after notice to heirs and
legatees, in the county (or probate) court, and may be contested, in
chancery, within one year after its probate. Wills or authenticated
copies, affecting estate within this State, duly proved outside o f this
State, in accordance with the law o f the State where executed, accom­
panied with a certificate o f the proper officer o f that fact, may be
recorded here. Wills executed and published out o f this State may
be admitted to probate in any county in this State where the testator
had lands or personal property upon like proof as if executed and pub­
lished here, whether or not the will has been first probated in another
state or county. The Uniform Foreign Probate A ct is in force in
Illinois. All original wills, after being filed, must remain in the office
o f the county (or probate) court. Children may be disinherited.

SYNOPSIS OF

THE LAW S OF INDIANA
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by Messrs. P ickens , Moobes , D avidson
and P ickens , Attorneys at Law, Indianapolis.
(See Card in Attorneys' List.)
A ck n ow led g m en ts. All conveyances o f real estate, except leases
for less than three years, must be in writing, and acknowledged and
recorded at once, or they will not bind third parties. Within the
State acknowledgments may be taken before a judge or cleik o f a
court of record, justice o f the peace, auditor recorder, notary public,
member o f the general assembly, or mayor o f a city, and in other
states and territories before the like officers, or a commissioner o f
deeds for Indiana. In any foreign country, before a diplomatic or
consular officer o f the United States. I f such acknowledgment or
proof is in some other than the English language, or is not attested
b y such official seal, it must be accompanied b y the certificate o f an
officer o f the United States, to the effect that it is duly executed accord­
ing to the laws o f such foreign country, and that the officer has legal
authority to certify to the proof or acknowledgment and the meaning
o f his certificate, if made in a foreign language. Wife must join in
deeds and mortgages o f husband’s lands in order to carry her in­
choate one-third interest in husband’s lands. N o separate acknowl­
edgment o f wife necessary in order to convey her inchoate interest
in husband’s lands, although she must acknowledge. The certifying
officer should state the date when his commission expires.
A c tio n s. The distinctions between law and equity are abolished.
The statute provides but one form of action. Pleadings are governed
by eode. Non-resident plaintiffs must give bond to secure costs.
A d m in is tra tio n o f E states. 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. W idow or widower. 2. Next of kin. 3. Largest resi­
dent 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 hus­
band’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, legatees and heirs entitled to dis­
tribution, 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 suc­
cinct 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.
A ffid a v its may be taken before any officer qualified to take acknowl­
edgments (see above).
Date of expiration of officer’s commission
must be certified.
A lien s. Resident aliens who have declared their intention to
become citizens, may acquire, hold, and enjoy real estate, and may
convey, devise, mortgage, or otherwise encumber the same, in like
manner and with the same effect as citizens of this State. Aliens,
whether resident or not, may own real estate not exceeding 320 acres;
lands in excess of that amount they must convey within five years or
suffer escheat as to such excess.
A rrest fo r D eb t. 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.
A ssig n m en ts an d I n s o lv e n cy . 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.
A tta c h m e n t may issue against the property of a non-resident or
foreign corporation, and against any who may have disposed of, or be
about to dispose of, property, to cheat, hinder or delay creditors, or
against a creditor who conceals himself so that summons can not be
served upon him. An affidavit is required, and a bond to pay dam­
ages if the proceedings be wrongful or oppressive. Creditors who file
under the original attachment, before final judgment, are required
to furnish a like affidavit and bond, and all share pro rata In the
proceeds of the attached property. The wages of a resident house1 ,holder, not exceeding one month at.any one time, are exempt so long as

1604

BANKING AND COMMERCIAL L A W S — INDIANA

debtor remains in such employment. It Is a misdemeanor to send
claims out of the State to be collected by attachment, oi garnishment,
when creditor, debtor, and person owing tor earnings Intended to
be reaohed are all within the Jurisdiction ot the court ot this State.
The collection ot claims so sent may be enjoined.
B a n k s, P riv ate. A ct ot 1907 (in effect Dec. 1, 1907), regulating
private banking applies to any one who may use the word “ bank"
In hU business. Capital must be at least $10.000, not more than onethird ot which may be Invested In the bank building. All real estate
must be held In name ot bank. Bank cannot Invest In real estate
except In realizing on doubtful claim. Statement must be Died with
state auditor showing copy of articles ot partnership acknowledged
(one ot the partners to be resident of the state); location, amount
ot capital, net worth of partners to be double capital paid in. names
ot officers
List of officers must be posted In bank. Two reports of
resources and liabilities are called for each year by auditor and pub­
lished In local newspaper. Examination of bank made at least
annually by auditor Statement ol property held In trust by bank
must be filed In county recorder’s office. Depositors have lien on
assets. Jurisdiction over all persons Interested Is obtained by
process served on officer in charge. Banks can not commence business
until chartered by State Chatter Board.
B a n k s, S avin gs. Governed by a general statute which regulates
in minute detail the Investments and conduct of business. Savings
banks may purchase, hold, and convey real estate for the following
purposes, and none other: For the location of banking house; real
estate mortgaged to It in good faith for money loaned, or upon which
It shall have purchased a mortgage; real estate taken upon judgments
and decrees on behalf of the bank, or purchased to prevent loss on
claims held by the bank.
B an k s, State. Regulated by a general banking law. The auditor
of the state appoints a state bank examiner who shall not be a
director or other officer of the bank, and shall have power to make
a thorough examination Into all the affairs of the bank, and, In doing
so, to examine any of the officers and agents thereof on oath. The
examiner reports In detail the condition of the bank from time to
time. The state banks must make not less than five reports each
year, verified by the president, or other managing agent, which
reports must exhibit the resources and liabilities at the close of busi­
ness on any past day to be by the auditor specified. The report so
required must be published in a newspaper where the bank Is estab­
lished, or, if there Is ho newspaper In the place, then In one pub­
lished nearest thereto In the same county or an adjoining county.
The auditor may require special reports from any bank, whenever
In his judgment, It shall be necessary in order to a full knowledge of
its condition. Any bank falling to make such report shall be subject
to a penalty of $100 for each day that It delays to make and transmit
the same. All banks are empowered to execute trusts and act as
trustees.
B ills o f E x ch a n g e a n d P ro m isso ry N otes. No grace is allowed.
Damages tor 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.
(See Negotiable Instruments.)
C h a ttel M ortg a g e s. 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 mort­
gaged property except under a judicial proceeding in the circuit or
superior court. For certain restrictions on the lending o f money
on mortgage o f household goods, see the statutes.
C onveyan ces. All conveyances, mortgages or leases for more than
three years shall be recorded and take priority according to time of
filing as against good faith purchaser, lessee or mortgagee. 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 alien (see Allens), with some provided exceptions as to descent
or devise. Lands which may have come by descent or purchase to
the wife of an alien, may be held, conveyed, devised and passed by
descent by and from her, notwithstanding the fact of her residence
with her husband In a foreign state or country
; Except bona-fide leases for a term not exceeding three years, con­
veyance of lands, or of any Interest therein, must be by deed, sub­
scribed, 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
executbrs 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 com­
mon, 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 U 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 o f bargain and sale. If it be the
lUtention of the grantor to convey any lesser estate It must be so
expressed In' the deed. Liability on lineal and collateral warranties
is expressly abolished; a covenant or agreement of any person leaves
heirs and devisees answerable thereon only to the extent of property
descended or devised to them. Any conveyance of land worded—
“ A. B. oonVeys and warrants to 0. 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 acknowl­
edged 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 évidences of debt, or a description
thereof, sought to be secured, also the date of the repayment)” — the
same being dated and duly signed ahd 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
>ls 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 o r affedted as against any


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person other than the maker of the defeasance, or his heirs or devis«»*
or persons having actual notice thereof, unless the instrument
defeasance shall have been recorded, according to law, within nin«ti
days after the date of said deed. Every conveyance or mort^mr« «t
lands, or of any Interest therein, and every lease for more than three
years, shall be deemed fraudulent and void as against any subsea u«nt
purchaser, lessee or mortgagee in good faith and for a valuable enn
sidération, unless recorded in the recorder’s office of the cbuntv wh«»
such lands are situated. (See Acknowledgments, Married Women.)
C orp ora tion s. Domestic Corporations. Corporations are created
only under general statutes. This is done by means of articles of
association, filed with the secretary of state, and the recorder or clerir
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 Dald
for their stock are not liable for debts of the company. However
there Is liability In some cases for labor and services of employes'
Shares o f capital stock in a private corporation are subject to attach­
ment. Annual reports must be filed in June with the Secretary of
State.
Foreign Corporations. Agents of foreign corporations, before
entering upon the duties of their agency in this State, shall deposit
In the clerk’s office of the county, where they propose doing business
the power of attorney, or appointment, under which they act. They
shall also file a duly authenticated order, resolution or other sufficient
authority of the board of directors authorizing citizens or residents
of this State having a demand against such corporation arising out
of any transaction in this State with such agents to maintain an
action In respect to the same in any court of this State of competent
jurisdiction, and authorizing service of process on such agent, and
that such service shall authorize Judgment and all other proceedings
against such corporation. By act o f 1913, foreign corporations
must file with auditor o f State certified copy of vote of directors
consenting to accept service o f summons on auditor of State as sum­
mons on corporation. I f foreign corporation has no agent within
State, summons may be served on Auditor of State, who shall notify
corporation. Contracts made by such agents shall not be enforced
in any court of this State until there has been a compliance with
the above provisions. Failure o f a foreign corporation to comply
with these provisions will not bar— but will abate such action. Any
person who shall, directly or indirectly .receive or transmit money
or property to or for such corporation, or make any contract, or
transact any business for or on account o f any such corporation,
shall be deemed agent. This provision does not apply, however,
to persons acting as agents for a special or temporary purpose or for
purposes not within the ordinary business, nor does it apply to
attorneys at law. Any person acting as agent of a foreign corpora­
tion, who shall neglect or refuse to comply with the foregoing pro­
visions, is liable to a fine In any sum not less than $50. In 1879 it
was enacted that: Every foreign corporation now doing or trans­
acting, or that shall hereafter do or transact, any business in this
State, or acquire any right, title or Interest In or lien upon real estate
In this State, that shall transfer or cause to be transferred from any
court of this State to any court of the United States, save by regular
course of appeal after trial In the State courts, any action commenced
by or against such corporation in any court of this State by or against
any citizen or resident thereof: or that shall commence in any court
of the United States In this State, on any contract made In this
State, or liability accrued therein, any suit or action against any
citizen or resident of the State of Indiana, shall thereby forfeit all
right and authority to do or transact business in this State, or hold
real property or liens thereon, and all contracts between such cor­
porations and citizens and residents of this State made after the
passage of this act shall be rendered void, as In favor of such cor­
porations, but enforceable by such citizen at his election. The pro­
visions of the foregoing section are made conditions upon which
such corporations may be authorized to do business, or hold titles to,
or liens on, real estate In this State. By the act of 1991, foreign
corporations are required to designate an agent in. this State upon
whom legal process may be served; to have an office where proper
books of account may be kept. By act of 1907 foreign corporations
desiring admission to state must make verined statement to Secre­
tary of State showing: articles of Incorporation, business Intended
to pursue, capital stock, proportion of its business carried on in this
State, amount paid In on capital stock, and answers to other inter­
rogatories propounded by the Secretary of State, and shall pay a
fee of $25 on first1$10,000 of assets used in Indiana, $10.00 for each
additional $10,000. Annual report must be filed in January and fee
o f $1 paid. Foreign corporations may not hold real estate except
such as may be necessary for proper carrying on of its legitimate
business.
C ou rts. Terms and Jurisdiction. The circuit court is the only
court of original general civil Jurisdiction In the State. It has full
probate powers, except In Marion County, where there Is a separate
probate court. Superior courts have been established in many
counties. Justice’s jurisdiction, $200. Party may confess judgment
before a Justice of the peace for $300. When a written obligation for
money binds more than one party the Justice of the peace may Issue
process to constable of any county in the State where party resides.
The supreme court has no original jurisdiction. It sits at Indianapolis.
The appellate court has final jurisdiction in many cases.
D ays o f G race are no longer recognized.
D ep osition s. Depositions may be taken anywhere In the United
States without a commission, before any judge, justice of the peace
notary public, mayor, or recorder of a city, clerk of a court of record,
or commissioner Appointed by the court to take depositions. Per­
son taking deposition must not be of kin to either party or interested
In the action. 1When taken outside of the United States they shall
be taken pursuant to an order of the court, under a commission, with
such reasonable notice of the time and place of taking the same as
the cohrt shall require, and they shall be certified and returned by
the commissioner in sucb manner as the court shall direct. Notice
of the taking of the deposition should be served upon the adverse
party or his attorney, specifying the cause, the court or tribunal oi
trial, the time and place of taking, and the names of the’ witnesses.
Reasonable time shall be allowed for the attorney so served to com­
municate with the client, and for travel to the place of taking, exclud­
ing the day of service, o f the taking and intervening Sundays. The de­
ponent shall be first sworn according to law ., He shall then be examined
by the party producing him, and then by the adverse party, and then Dy
the officer, if he see cause. The deposition shall be written down by tne
officer, by the deponent, or by some disinterested person, in the presence
and under the direction o f the officer, and after the same has been
carefully read shall be subscribed by deponent. The following tacts
shall be stated in a certificate to be annexed b y the officer: 1. tnav
the deponent was sworn according to law. 2. By whom the depo­
sition was written, and if written by deponent or some dismteresoeu
person, that it was written in the presence and under the dilution ox
the officer. 3. Whether the adverse party attended. 4. The time
and place of taking, And the officer shall sign and attest the certincac .
and seal the same, if he have a seal o f office. I f he have no seal, n

BANKING AND COMMERCIAL L A W S — INDIANA
Mftificate shall toe authenticated b y the certificate and seal o f the
rffirk or prothonotary o f any court o f record o f the county in which
mrtiflcate shall be authenticated b y the certificate and seal o f the
piprk or prothonotary o f any court o f record o f the county in which
thfl officer exercises the duties o f his office. The officer taking the
rtsnosition shall seal the same in a sufficient envelope and himself,
nost or express, or deliver the same to the clerk, o f the court in which
the action is pending, endorsing on the envelope the names o f the
narties and o f the court and o f the witnesses .whose depositions are
enclosed. Adjournments may be had from day to day after the
deoosition has been begun, and for longer periods, upon written con­
sent of the parties, which written consent must be attached to the
deposition. Adjournments should be noted at the place in the
deposition when they occur. A narrative form may be used. A
witness identifying a written instrument should attach it to his
deposition, making it a part o f his answer.
Descent. The real and personal property of any Intestate shall
descend to his or her children equally; and posthumous children
Inherit equally with those born before the death of the ancestor.
Children of deceased children take the share which would have
descended to the father or mo then and grandchildren, and more
remote descendants, and other relatives, lineal and collateral, inherit
by the same-rule, excepting that if the heirs are all grandchildren
they Inherit equally. Where there are no heirs as aforesaid, onehali of the «state goes to tne father ana mother as joint tenants, or
to the survivor, and the other half to the brothers and sisters, and
to the descendants of such as are dead, as tenants in common. If
there be neither father nor mother, the brothers and sisters, and
the other descendants, take the estate as tenants in common; or,
oer contra, the father and mother as joint tenants of the survivor.
Kindred of the half-blood Inherit equally with those of the wholeblood in property purchased by the ancestor; otherwise, as to property
acquired by gift, devise, or descent. Illegitimate children Inherit
from the mother same as if they were legitimate, and vice versa.
Tenancy bv the curtesy and dower are abolished, and widows take
one-third of the real estate in fee simple, unless tne property is worth
over $10,009, in which case, as against creditors, she takes one-fourth
only and where the real estate is worth over $20.000, one-fifth only
as against creditors, but as against other heirs she takes one-third
In fee simple, regardless of value, except where there is but one
child, in which case each Inherits one-half. A second or subsequent
wife, however, takes only a life estate in her husband’s lands, if there
be a child or children by a previous marriage, and none by such
widow. Other special provisions of the statute are too extensive to
set out. The estate of a person dying Intestate without kindred
capable of inheriting will escheat to the State for the support of the
common schools.
Dower. (See Married Women.)
Executions may Issue at any time within ten years after judg­
ment and are returnable in 180 days. From a court of record may
Issue to any county in the State. Are a lien on personal property
within the county from the time they are placed in hands of officer.
The liens upon personal property attach in the order in which the
officer receives them. When levy is upon real estate the dates ol
the judgment control the right to participate In the proceeds, and
they must be applied according to their priority. Personal property
taken in execution may be left with execution defendant by the
giving to the officer of a delivery bond with sufficient surety; debtor
may, by giving sufficient freehold sureties, have a stay of execution
on any sum exceeding $100, for six months. Where the sum is less
than $100, the stay is not so long, varying with amount of Judgment.
Lands sold under execution may be redeemed within one year by
the owner, mortgagee or person having a lien thereon, the owner
retaining possession during the redemption yea« and being liable for
reasonable rents and profits in case of failure to redeem.
Exemptions. Property up to $600 is exempt in suits on contract
where debtor is a resident householder. Resident householder is
entitled to exemption as well when in transit with his family and
property as when permanently settled. The debtor must file a sched­
ule of all o f his property, and select the property claimed, which is
then appraised. Contract waiving exemption .is void. Pension
money in transit to pensioner is exempt, but when received by him
and invested in other property is no more so than any other property
One month’s wages also exempt if the debtor is still employed.

Fraud. Assignments, In writing or otherwise, of any property
made or suffered with intent to hinder, or defraud are void as to the
persons defrauded. The question of fraudulent Intent is a question
of fact.
Frauds— Statute of. The following contracts, if enforcible In court,
must be in writing and signed by the party to be charged: 1. To.
charge an executor or administrator, upon any special promise, to
answer damages out of his own estate. 2. To. charge any person,
upon any special promise, to answer for the debt, default, or mis­
carriage of another. 3. To charge any person, upon any agreement
or promise, made In consideration of marriage. 4. Upon any con­
tract for the sale of land (except loan not exceeding the term of three
years). 5. Upon any agreement not to be performed within one
year from the making thereof. 6. Sale of goods exceeding $50 in
value, unless’ part payment or part delivery be made. 7. Upon
any representation made concerning the character, conduct, credit,
ability, trade or dealings tof a"hy other person.
Garnishm ent. (See Attachment.) Garnishment is a remedy in
aid of attachment. Upon any personal action arising out of contract
any person may be summoned as a garnishee defendant upon an
affidavit that official has good reason to believe that any person
named has property of the defendant in his possession or under his
control, or that he is indebted! to the defendant, or has control or
agency of money, property, credits, or effects;,that he has any share
or interest in the stock of any association or corporation, and all
money or property in the hands of the garnishee defendant is bound
from the time the summons is served upon him. Resident house­
holders are entitled to an exemption of $600 in garnishment pro­
ceedings, as in all other cases. Wages of non-residents, to the amount
of $25, and of resident householders to the extent of one month’s
wages, are exempt from execution so long as the defendant remains
in the employ of the gami3hee. Indiana claims can not legally be
sent or taken out of the State for prosecution, and suits Instituted
elsewhere in violation of this prohibition may be enjoined and the
offender be criminally prosecuted.
Holidays. (See Legal Holidays.)
Husband an d W ife . (See Married Women.)
Inheritance Tax. (See Taxes.)
Interest. . The legal rate is 6 per cent, but Interest may be taken
m advance. / No agreement to pay a higher rate is valid unless the
same be in writing, and in such case it is not lawful to contract for
mote than 8 per cent. When a greater rate is contracted for, the
contract is void as to all interest in excess of 6 per cent, is usurious
and illegal, and the excess may be reoouped by the debtor whenever
it has been reserved or paid before the bringing of the suit. Interest
on judgments runs from the date of the verdict or finding, at the
fate specified in the original contract, not exceeding 6 per cent, and
11 no contract has been made 6 per cent is allowed.


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Federal Reserve Bank of St. Louis

1605

J u d g m e n ts of courts of record are a lien upon all real estate of
defendant within the county for ten years. Judgment may be
obtained at the first term o f the court, after process has been served
on debtor ten days prior to the first day thereof. Judgment In justice
court becomes a lien on real estate of Judgment defendant from time
of filing a transcript in office of the clerk of circuit court. A certified
copy of any judgment rendered by the circuit court of the United
States for district of Indiana may be filed with the county clerk.
, L egal H olidays as to commercial paper are as follows: The first
day of the week, commonly called Sunday; the 1st day of January;
the 4th day of July; the 25th day of December; any day appointed
by the president or governor for public fasting or thanksgiving; 12th
day of February; 22d day o f February; 30th day of M ay; first M on­
day of September; 12th day of October; and any election day; when
any holiday (other than Sunday) comes on Sunday the M onday next
succeeding shall be the legal holiday; Saturday afternoon is a legal
half-holiday in the city o f Indianapolis and may be made so by act
of bankers in other cities of over 35,000 population.
L iens. Liens are granted by statute to attorneys; to persons
holding claims against watercraft on account of supplies furnished or
work done; also for demands for damages arising out of freight con­
tracts, or for willfulness or negligence of the master, owner, or agent,
or out of any contract relating to transportation, and for injuries to
persons or property; also 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 blacksmiths; also to
contractors, sub-contractors, mechanics, journeymen, laborers, and all
persons performing labor or furnishing material or machinery for
erecting, laboring, repairing or remoying.any house, mill, manufactory
or other building, bridge, reservoir, system o f 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 o f value; also tp the bailee or keeper of
personal property for any feed or care bestowed by him upon such
property; special lien for storage or repair o f motor vehicles; also to
forwarding and commission merchants on goods* which may have
remained in store for one year or more. Persons storing,, furnishing
supplies or repairing a motor vehicle or garage owners have lien on
motor vehicle which can be foreclosed within one year from failure
o f owner to pay charges. Judgments rendered jn any county in the
State are a lien upon the real estate situated in such county for a
period o f 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 o f any
judgment rendered in the United States courts. The office o f thè
clerk o f the circuit court in each county contains a public record
known as the lis pendens record,, in which notice of the filing of com­
plaints 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 o f suits does not operate as a constructive
notice.
L im ita tion s to Suits. Actions for injury to person and character,
and for statutory penalty or forfeiture, two years; against public
officers relating: to their official duties, and on public improvement
assessments, five years: open accounts and contracts not in writing,
for use, rents and profits of real estate, injuries to and detention of
property, recovery of personal property*and relief against frauds, six
years; upon promissory notes, bills of exchange and other written
contracts for payment of money, ten years; actions not limited by
statute, fifteen years; other written contracts, judgments of courts of
record and real actions, twenty years. Revivor: part payment or
new promise in writing. Except in favor of sureties, the statute of
limitation does not run against the State.
M arried W om en control their real and personal property.
The
husband is liable for the wife’s debts contracted before marriage to
the extent of the personal property he may receive from her, and no
further, and her lands are liable for such indebtedness. A married
woman may devise her separate estate; may sell and transfer her separ­
ate personal property; carry on any business, labor, or service, and
receive the earnings accruing therefrom; enter into any contract in
regard to her separate personal estate business, labor, or service, and
her separate estate, real and personal, be liable therefor, the same as a
femme sole: and her husband is not liable for such debts, nor for
indebtedness created by the wife for improvement of her separate
real estate. Spe can make leases of real estate for terms of three
years or less, and execute mortgages to secure purchase money, with­
out husband Joining. She is bound by covenants of title in convey­
ances 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 void: but If,
as an Inducement to her contract, she makes a sworn statement that
contract or mortgage Is for her own benefit, in respect to her separate
estate, she is estopped from alleging her suretyship as against any one
having no knowledge that the contract ;is one of suretyship. She is
entitled to hold as exempt from execution in any suit on contract prop­
erty to the amount o f $600. A widow takes one-third o f her deceased
husband’s real estate in fee, and free from all demands o f creditors,
where the astate does not exceed $10,000; ohe-fourth, if uiider $20,000,
and one-fifth, if above that amount. She also takes a child’s interest
in the personality where the number of children does not exceed two,
and where there are more than two her interest shall not be less than
onè-third of the whole o f personalty after payment o f debts, and in
all cases takes $500 without accounting, and may occupy the dwelling
and forty acres o f her husband’s land for a year, rent free. But the
one-third o f her real estate which the widow takes in fee, can not, upon
her marrying again, be effectively conveyed or mortgaged by her, if
there be a child or children, or their descendants, alive by the previous
marriage. Real estate which husband and wife hold by title made
to them as husband and wife, is held as an estate by entirety; it can
not be taken for the debt of either; is not subject to the lien of a
Judgment against either, except in case of the death of either or upon
divorce granted, when the estate Is destroyed and becomes subject
to levy and sale; and a mortgage thereof by them both for a debt
of the husband has no legal validity.
M ortg a g es. (See Conveyances.)
,
N egotia ble In stru m en ts are defined b y Chapter 63 of the Acts
of 1913. Section 1 prbvides 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. M ust contain an unconditional promise or order to pay a cer­
tain sum 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.
5. Where the instrument is addressed to a drawee, he must be
named or otherwise indicated therein with reasonable certainty.

1606

BANKING AND COMMERCIAL L A W S — IOW A

Its negotiability is not affected b y a provision 'which authorizes
the sale o f collateral securities in case the instrument is not paid at
maturity, or authorizes a confession o f judgment if the instrument
be not paid at maturity, or waives the benefit o f any law intended for
the advantage o f the obligor, or gives the holder an election to require
something to be done in lieu o f the payment o f money.
T o charge indorser notice o f non-payment must be given to him at
once, unless waived by him.
Every negotiable instrument is payable at the time fixed therein
without grace. Where day o f maturity falls on Sunday or a holiday,
instrument is payable on next succeeding business day. Instruments
payable on Saturday are to be presented for payment on next succeed­
ing business day, except that demand instruments may be presented
for payment before noon Saturday when that entire day is not a holiday.
In any case not provided for in the act the law merchant governs,
and all laws in conflict are repealed.
Act does not apply to negotiable instruments made and delivered
before April, 1913.
P ow er o f A tto r n e y must be executed and acknowledged, and (if
for the conveyance of real estate, or to affect real estate) recorded, in
the same manner that deeds are made.
P ro b a te L aw . (See Administration of Estates.) ■
P ro te st. The statutory damages on such protest are 5 per cent
on the principal of a bill o f exchange, if drawn or negotiated within
this State, upon any person, at any place out of this State, but within
the United States, and i o per cent if upon any person, at any place
without the United States.
R e p le v in . 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 all such cases. Replevin may also be had without bond, by
allowing defendant to retain possession o f property pending suit.
S uits. (See Actions.)
T axes. State, county, township, municipal, school, and road taxes
attach as a lien on real estate on March 1st of each year, and penalties
attach on first Monday in May in the next year. One-half of all
taxes may be paid without penalty, if paid before first Monday of
May; other half, if paid before first Monday o f 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
delinquency, but the following year’s tax (not yet delinquent) is
embraced in the amount of the sale. An inheritance tax, graduated
in amount according to the amount involved, and the relation o f the
beneficiaries to the decedent, is levied upon all intangible or tangible
proper o f resident decedent, and upon tangible proper of non-resident
decedent. Tax applies as well to gifts made in anticipation o f death,
to take effect at that time.
W ills. Nuncupative wills, where property of more than the value
o f $100 is bequeathed, are not valid, except as to the personal property
and wages i>f 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 b y 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. Will made before marriage becomes void on marriage.

SYNOPSIS OF

THE LAW S OF IOW A
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by B. J. C a v a n a g h , Attorney at Law, Des Moines.
(See Card in Attorneys’ List.)
A c co u n ts and C laim s o f. Statements of account, for use in
court or for proof in the settlement of estates of deceased and in
guardianship matters, must be itemized and verified, a statement
of “ balance,” or “ goods,”, or “ merchandise” is not sufficient.
A c k n o w le d g m e n ts . All Instruments affecting real estate, includ­
ing 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 acknowl­
edgments may be made are prescribed by statute.
A c tio n s. The common law forms o f pleading are not used,
although the common law forms the basis o f procedure. Pleading,
practice, and procedure are statutory, and accord, in the main,
with what is known as the reformed, or code procedure.
A d m in is tr a tio n o f E states. 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 b y thè exeeutors or administrators
o f their appointment. 4 . All other debts. 5. Legacies and dis­
tributive 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 o f 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 circum­
stances entitle the claimant to equitable relief.


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A ffid a v its. Affidavits may be taken before any person authnw,^
to administer oaths in the state where taken. If taken w fih n n t^
State of Iowa, the official character of the officer administering Hi®
oath should be evidenced In the same way as the official^ffiuacfer of
an officer taking depositions. (See Depositions.) Affidavits
hi
taken within the State for any lawful purpose. ofoneum riU in? tS
voluntarily make an affldavit.by filing a petition with an officer autLr
ized to administer oaths, who may cause the person to come he?££
him and make affidavit. This proceeding is statutarg and S L t
form strictly to the statutes of Iowa.
y nQ must °°nAffidavits for proving accounts and form : State o f . .
County o f . .................ss, I ................... being first duly sworn on niih
depose and say that I am (a member o f the firm o f
’ ° n w it
that said firm is) the owner o f the account hereto attached, marked
exhibit A , and made a part hereof, that the same is correct in au
particulars and that the articles named therein were sold and deliver«?
to said. . . . . . . . . - at the prices and times therein named and agreed

upon, and that said articles were reasonably of the value charged
and that the said account is due and unpaid. That there is no legal
set off or credit to the same or any part thereof excep t a s herein stated
Subscribed and sworn to before me, by the said...
this ™'
day, etc.
■•••
A llen s. Non-resident aliens or corporations incorporated under
the laws of any foreign country or corporations organized in this
country, one-half of the stock of which is owned or controlled by non­
resident aliens are prohibited from acquiring title to or holding any
real estate in Iowa, but the non-resident alien widow, heirs, or devisees
of an alien or naturalized citizen may hold the same for twenty yeara
and if not sold within that time, escheats to the State. Aliens mav
acquire property of any kind within a city or town or lands not exceed­
ing 320 acres or stock in any corporation for pecuniary profit and may
alienate or devise the same, but this law does not affect personal
property. A lien holder may acquire title to the property embraced
in such lien but real estate so acquired must be sold within ten years
after title is perfected in an alien, otherwise it will escheat to the
A rrest. 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
o f his property. (See Supplementary Proceedings.)
A ssig n m e n ts a n d In s o lv e n cy .
General assignments not valid
unless for benefit of all creditors, when assent of creditors is presumed
The debtor must annex to the instrument of assignment a sworn
Inventory and list of creditors; and such,instrument must be acknowl­
edged and all of the papers recorded like a deed of real estate. The
assignment vests in the assignee title to all property of the debtor.
Assignee must give bonds, prepare a verified Inventory and valuation,
and notify creditors by mail to file claims within three months.
All claims not filed within three months after notice published or
within such extended time as the court grants, not exceeding nine
months, including claims not yet due, can not be paid until all niai™«
filed within said time are paid. An assignment does not discharge
the debtor from his debts and liabilities, but only entitles creditors
to share equally in his estate. All claims filed must be Itemized
and sworn to.
A tta c h m e n ts . An attachment, auxiliary to the main case, may be
sued out upon any one of twelve (12) statutory grounds for a debt,
which is past due; or upon any one of four (4) statutory grounds
for a debt on contract, not yet due. A bond must be filed for three
times the amount claimed, if the action is founded upon contract,
otherwise, in a sum to be fixed by the court, If the action is not founded
upon contract. Garnishments may be effected under the writ of
attachment. Special attachments are permitted, to attach speclfle
personal property, in a few prescribed cases.
B an k s. The banks organized under the laws of Iowa are respect­
ively 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
organization, the issuance of and payment for capital stock, the
board of directors, quorum, voting by proxy, limitation of deposits,
and the investment thereof, the loaning of funds, the cash reserve
required, and the dissolution of such banks
State banks must have a minimum capital o f from $25,000 to
$50,000, according to the population of the city or town in which
each is located. Each share must be o f the par value of $100. The
statutory provisions must be consulted for the particulars above
referred to on the subject of savings banks.
Banks and loan and trust companies may obtain power to act as
executor, administrator, guardian, receiver, assignee, trustee, or in
other fiduciary capacity. National Banks may exercise the same
powers when authorized b y Act o f Congress. Any Iowa State or
Savings Bank or Trust Company may become* a member of the
Federal Reserve bank system.
B ills o f E x ch a n g e . The negotiable instrument law recommended
by the interstate commission on uniformity of law has been enacted
and is now law in Iowa. (For Grace, See Days of Grace.) A provision
for the payment of exchange, in addition to the amount of principal
and interest, does not render a bill of exchange non-negotiable.
B ills o f L a d in g . The uniform Bill of Lading law has been adopted
in Iowa.
C h a ttel M ortg a g es. N o sale or mortgage o f personal property,
where the vendor or mortgagor retains actual possession, is valid
against existing creditors or subsequent purchasers without notice,
unless a written instrument conveying same, be executed acknowledged
like conveyances o f real estate, and filed for record with the recorder
o f deeds o f the county where the holder o f the property resides.
N o' encumbrance o f personal property which may be exempt from
execution by the head o f a family if a resident o f the State shall be
o f any validity unless the same be b y written instrument and unles%
the husband and wife concur in and sign the same joint instrument.
C ollateral S ecurities. There are special statutory provisions
concerning the pledging of corporate stock, as security: and also
upon the subject of sales of collaterals by action ’In court and judicial
sale. Otherwise the subject is governed by the common law.
C o n d ition a l Sales. No sale, contract, or lease wherein the
transfer of title or ownership of personal property is made to depend
upon any condition, shall be valid against any creditor or purchaser
of the vendee or lessee in actual possession, obtained, in pursuance
thereof, without, notice, unless the same be in writing, executed
by the vendor or lessor, acknowledged and recorded the same as
chattel mortgages.
C on v ey a n ces. No particular form is necessary for conveyances
or mortgages. The name of the parties, the description of the property,
the consideration, the date, signature, and acknowledgment, is all
that is necessary: as between the parties they are valid without
being recorded. The wife must join with her husband in conveyances,
and a conveyance of the homestead is of no validity unless husband

BANKING AND COMMERCIAL L A W S — IO W A
j ^nfe concur in and sign the same Joint Instrument. A corporation
!r«mtes conveyances under its corporate seal, except where the
iirnnration has not adopted a seal. Such conveyances must be signed
Ertiifl name o f the corporation by the officers authorized so to do,
{?_ ,.1,« Articles o f Incorporation, or By-Laws, or by resolution duly
Ant,«red of record in the minutes of the corporation, and duly acknowl­
edged by such officers, as the act o f the corporation.
rnroorations. Private corporations, sole or aggregate, may be
formed for any lawful purpose. But there are special statutory
nrovisions which must be complied with for the organization and
G overnm ent Of insurance, banking, loan and trust, building and loan,
inti railway corporations. In all cases, the articles of incorporation
rnnst b e acknowledged and recorded. In the manner provided by
law and approved by the secretary o f state. With a few exceptions,
.n Incorporation fee of $25, plus $10 for each thousand dollars of
oanital In excess of $10,000 must be paid, upon the organization
nr renewal of a private corporation. The general term of the life
nf a private corporation is twenty years, renewable for a like term.
Railroads, savings banks, and a few others may last fifty years,
4,1Foreign *Corporations are required to pay a similar incorporation
fee before doing business In the State, based, however, upon the
nmDerty of the corporation, within the State o f Iowa. Foreign public
sendee corporations, other than steam railroads, doing business in
Towa and holding companies controlling the stock o f such companies,
are made subject to many o f the laws o f Iowa affecting similar domestic
corporations.
Courts. Terms and Jurisdiction. The district .court has Jurisdic­
tion of all actions, civil and equitable, and has criminal and probate
inrisdiction. Superior courts may be established by the vote of
the people in any city of 5,000 Inhabitants. It has Jurisdiction to
try all violations of city ordinances, and the same criminal jurisdiction
h Justice of the peace courts. It has jurisdiction to try and determine
civil and criminal appeals and civil writs of error from justices of
the peace, situated in the township where the court is located. Has
the same jurisdiction as the district court to try all suits in law and
eoulty, except grant divorces, alimony, and separate maintenance,
and it has no probate jurisdiction. Transcripts from superior and
Justice's courts must be filed in district court to create a lien on real
estate, and are then enforced, as Judgments of the district court;
Justice's jurisdiction, $100, or, by written consent o f parties, $300.
The supreme court has only appellate jurisdiction and holds sessions
at Des Moines, January to May, from May to September (less vaca­
tion), and from September to December.
Days o f G race. Every negotiable instrument is payable at the
time fixed therein without grace.
Depositions may be taken within the State, on notice, and within
or without the State, on commission, issued after notice by the clerk
of the proper court. When to be taken on commission, defendant
may elect. In writing, duly served, to cross examine orally; thereupon
plaintiff may also elect in writing to examine orally. Exceptions
must be filed within three (3) days, after the filing o f the deposition,
but objections may neverless be made on the trial for competency,
materiality, and relevancy.
Descent an d D istrib u tio n o f P ro p e rty . Subject to rights of
dower and other charges thereon, and burdens Imposed during the
lifetime of the decedent, and in the absence o f a valid will, the estate
of one deceased shall descend in equal shares to his children. The
heirs of any deceased child shall Inherit in same manner as though
such child had outlived his parents. If the Intestate leave no issue
the whole o f the estate to the extent o f $7,500 after payment o f debts
and administration expense, and one half o f the estate in excess of
said $7,500 goes to the surviving spouse and the other half to the
parents. I f no surviving spouse, the whole thereof shall qp to his
parents or the survivor o f them; and so on through ascending an­
cestors and their issue, if both parents be dead. Personal property
not necessary to pay debts is distributed to the same persons, and in
the same proportions as though it were real estate.
Dower. Dower In Iowa is abolished, but the surviving spouse
Is entitled to one-third In value of all the legal and equitable estates
In real property possessed by the deceased spouse at any time during
the marriage, which have not been sold on execution or any other
Judicial sale, and to which such survivor has made no relinquishment
of right. A spouse, heir or devisee feloniously taking or procuring the
taking of the life of the other spouse, or decedent, cannot have dower
or Inherit power or take under the will of the decedent. (See Limi­
tations.)
Employers Liability. Employers liability and workmen’s com­
pensation is governed b y statute.
.
Executions may be stayed, according to their amount, for ninety
days or six months, with a few specified exceptions, and the issuance^of
execution may be prevented by filing an appeal bond. Otherwise
execution may issue immediately after rendition of judgment. The
Judgment ,is a lien on realty within the county where rendered, or by
transcript. It may be made a lien in any other county. Executions
become liens on personal property only from the time of the levy and
seizure. Real estate is sold on execution subject to redemption within
one year, except In appealed oases, or where the interest is a leasehold
of two years or less. Creditors may redeem from the sale after six
months and before nine months from date of sale. Personal property
is sold without redemption.

Exemptions. The head of a family is entitled to a homestead of
forty acres or less of farm land, or half an acre or less in city or town.

Pension money, its proceeds, wages o f the head o f a family for 90
days past, and numerous items o f personal property are exempt b y '
statute. Thebe are statutory provisions concerning the creation of
liens on exempt real or personal property, and the assignment o f
exempt wages.
Fraud. In actions for fraud, heretofore solely cognizable in a court

of chancery, the cause of action shall not be deemed to have accrued
until the fraud complained of shall have been discovered by the party
aggrieved by the exercise of due diligence. In actions brought by a
Judgment creditor to set aside a fraudulent conveyance of property
from one spouse to the other and to subject said property to execution,
either husband or wife may be compelled to testify against the other.
Gross fraud is punishable by fine or imprisonment.
Garnishm ents.

(See Attachments.)

Husband and W ife. (See Married Women.)
Holidays. The first day o f the week, January 1, February 12,

February 22, M ay 30, July 4, the first M onday in September, Decem­
ber 25, the day o f general election and any day appointed or recom­
mended by the governor o f this State or the President o f the United
States as a day o f fasting or thanksgiving are holidays, for all purposes
relating to the presentation for payment or acceptance, and for the pro­
testing and giving notice o f the dishonor o f bills o f exchange, drafts,
bank checks, orders and promissory notes.

Interest. By written contract, maximum legal rate, 8 per cent.
Judgments draw 6 per cent, or such rate as is fixed by the contract
on which the judgment or decree is rendered, not exceeding 8 per
cent per annum.
Open accounts draw 6 per cent after six
months from date of last item; money loaned, money due, money
due on settlement of accounts, bear Interest at 6 per cent per annum.
Contract for more than 8 per cent forfeits all Interest and costs.


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I60£

J u d g m e n ts in thè district and superior courts may be obtained
at first term after suit commenced, if undefended; an equitable
action, except one for foreclosure of mortgage, or mechanic’s lien
or lor divorce, is triable at the second term after the case is at issue.
Judgments of the district court are liens on real estate owned by
the debtor at the time of rendition. If the lahds lie in any other
county, from the time of filing therein an attested copy of the Judg­
ment. Lien also covers all lands which defendant may acquire
within ten years from date of judgment, or upon which a levy is
made after ten or before twenty years from the date of the judgment,
but this lien dates only from the time of the levy. Judgments of
superior courts and justice of peace courts become liens on real estate
by filing transcript In district court within county where obtained,
and become liens in other counties in the same manner as if rendered
In the district court.
L iens. These are mainly created b y statute and are enforceable
in equity. In a few cases, and under peculiar circumstances, equitable
liens on real estate are established and enforced in equity.
L im ita tion s. Actions, according to their subject matter, have
various periods of limitation, fixed by statute, extending from three
months to ten years after the cause of action accrued. Actions upon
judgments rendered in courts of record have a limitation of twenty
years. Dower rights and mortgages existing or created prior to
January 1, 1885, are barred, unless now properly preserved in the
recorder’s office. Imperfect deeds by executors, administrators,
trustees, or guardians made prior to January 1, 1885, are confirmed
in favor of grantees in possession.
M arried W o m e n may own in their own right, real and personal
property, and may manage, sell, convey, and devise the same by
will. Neither husband nor wife is liable for the debts or liabilities
of the other Incurred before or after marriage,.nor are the wages,
earnings, or property of either, liable lor the separate debts of the
other. Contracts may be made by a wife, liabilities incurred, and
enforced by or against her, as if unmarried. Both husband and
wife are liable for the expenses of the family, and the education
of the children.
M o ra to r iu m . Soldiers and sailors and other persons in the mili­
tary or naval service o f the government or who may hereafter enter
such service during the present war are exempted while in such service
and for a period o f six months after the/ termination o f the war or of
said service or death, from payment o f any bill o f exchange or o f any
negotiable instrument, or o f any other payment in pursuance o f any
contract or from any writ o f attachment or execution. Any such per­
son who is or hereafter may be a party to litigation may on request
have same continued until the termination o f such service or death.
The statute o f limitations against such persons is tolled for the same
period.
,
M ortg a g es must be subscribed and acknowledged b y the parties
creating the lien and recorded same as deeds are foreclosed by equitable
action. The wife should join in the instrument, except mortgages
for purchase money, and mortgages upon non-exempt personal
property. The mortgagor has one year In which to redeem real
estate after execution sale, except as stated under the sub-title Execu­
tions.” When a mortgage is paid off, satisfaction thereof must be
made on margin of the record, or by satisfaction piece, acknowledged
and recorded. If no satisfaction is entered within thirty days after
request in writing, the mortgagee forfeits $25. (See Chattel Mortgages.)
(See Limitations.)
N on -resid en ts. Action may be brought against non-residents to
enforce liens on any property within the state; to enforce any debt
against a non-resident where action is aided by attachment on prop­
erty found within the State. Personal judgment cannot in any case
be rendered against defendants, not appearing, unless personal
service is had on such defendants within the State.
N otaries. These officers are appointed and commissioned by the
governor, upon filing a bond and paying the fee required by law.
They have power to administer oaths, take depositions, and the
usual power of such officers concerning presentation, demand, protest,
and notice of protest of negotiable commercial paper.
P artn ership s, L im ite d an d Special. Limited and special part­
nerships are permitted, but not favored. The statutes on this subject
must be strictly complied with. A certificate showing prescribed
details and particulars of the partnership must be signed, acknowl­
edged, and filed in the office of the clerk of the district court of the
county in which the principal place of business is situated, to be
there recorded and similarly recorded In each county where such
partnership has a place of business. There must be an affidavit
that the amount stated in the certificate has been actually contributed
by each separate partner. Publication must be made of the certificate
and affidavit for six weeks in two newspapers in each senatorial
district in which the partnership is to transact business.
P ow ers o f A tto r n e y . A power of attorney to convey, or in any
manner affect real estate, must be acknowledged and recorded. A
revocation of such power must be acknowledged and recorded in the
same office wherein the original power of attorney is recorded.
R eceivers. In distributing property In the hands of a receiver
there shall be paid in the following order; 1. Taxes or debts due
the United, States; 2. Taxes or debts due the State. 3. Debts owing
to employes for labor, not exceeding $100.
R ecord s. All instruments conveying or creating liens upon the
real or personal property, all conditional sales dnd articles of adoption
of a minor child, must, after having been signed and acknowledged,
be recorded in the office of the recorder of deeds in the proper county
or counties where the property conveyed is situated, or the minor
child is. Unless so recorded, such instruments are invalid as to a
bona fide purchaser or encumbrancer or as articles of adoption.
R e d e m p tio n . Redèmption from a sheriff’s sale of real estate,
whether sold under a general or special execution, may be made
by ft creditor wlio has a lien on tbe property sold, at time after six.
months from date of sale by paying to the clerk of the court the
amount provided by statute, being, generally, thq amount of the
purchaser’s bid, with Interest at the same rate that the judgment
bears. Within the time named creditors may redeem from each
other After nine months, and within one year from the date of sale
the owner of the real estate sold has the exclusive right to redeem from
such sale, and, in so doing, the debtor must pay off the claims of
judgment creditors, who have made redemptions as hereinabove
stated, in addition to the amount originally bid.
R ep le v in .
In actions for the recovery of personal property, the
petition must be verified; and if plaintiff desires immediate delivery
of the property, he shall execute a bond for double the value of the
property sought to be recovered. The defendant may stay all pro­
ceedings and retain the property by executing a bond to the plaintiff
with sureties to be approved by the clerk.
Sales o f G oods, in B u lk . Sales, including exchange and assign­
ments, of the whole or major part o f a stock o f goods, or fixtures, or
stock of goods and fixtures, in bulk, is presumptively fraudulent,
unless seven days’ notice in writing is previously sent by registered
mail to each creditor o f the seller, describing in general terms, the
property to be sold, assigned or delivered, and the parties thereto.
Both parties must, seven days prior to the sale or transfer make a
detailed inventory; showing quantity and cost o f price to seller and

BANKING AND COMMERCIAL L A W S — KANSAS

1608

the latter must furnish under oath a list of his creditors and the amount
due each.
1
S e cu rity fo r C osts. Non-resident plaintiffs piay, on motion of
defendant, be required to file a bond with sureties to be approved for
security o f costs either in justice court or district court.
S ta tu te o f F ra u d s. N o evidence except in writing and signed
by the party to be charged or by his authorized agent, is competent
relative to the following contracts: 1. In relation to sale o f personal
property, when no part o f the property is delivered and no part o f
the price is paid. 2. In consideration o f marriage. 3. therein
one promises to answer for the debt, default or miscarriage o f another,
including promises by executors to pay the debt o f decedent from their
own estate. 4. For the creation or transfer o f any interest in lands,
except leases for a term not exceeding one year. 5. Those not to
be performed within one year from the making thereof.
S tocks an d B on d s. The sale o f stocks and bonds is governed by
what is termed a “ Blue Sky Law."
S u p p lem en tary, P ro ce e d in g s. When an execution has been
returned unsatisfied, plaintiff may have an order for the appearance
and examination o f the judgment debtor; or such order may be
obtained after execution has issued upon proof by plaintiff’s affidavit
or. other proof that debtor has property which he unjustly refuses to
apply to the satisfaction o f the judgment. If any property be found
b y such examination it may be levied upon; if in the hands o f others
the court may require its delivery to satisfy the judgment, and
appoint' a »receiver o f debtors property, forbid the sale thereof and
order Equitable interests in realty to :be sold.
T axes. Heal estate is assessed every odd year; personal property
Is assessed every year. All property is assessed at its actual value,
and taxed at twenty-five (25) per cent of the assessed value. All
road taxes and one-half of the other taxes levied are payable without
interest or penalty before April 1st; the balance is payable
before October 1st. Delinquent taxes bear interest at the rate of
1 per cent per month. - Taxes upon realty are liens thereon; taxes
upon personalty are liens upon tne owner’s realty, except the home­
stead, 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. Heal estate is sold for unpaid taxes, after notice by publica­
tion, on the first Monday in December of each year, subject to redemp­
tion In three years from the date of sale.'
T ru st C om p a n ies. 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 con­
trolled by the general statutes concerning and relating to foreign
corporations doing business in Iowa. (See Corporations.)
T ru st D eeds. They must be executed and foreclosed, and consid­
ered as mortgages. That is, the power of sale on notice is abolished,
and they must be foreclosed by equitable action.
W arehouse R eceip ts. 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 particu­
lars 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 certifi­
cates 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 ware­
house receipt, is made a criminal offense. There is also a criminal,
statute against issuing false warehouse receipts or certificates.
W ills. Any person of full age and sound mind may dispose of
his property by will, subject to the rights of homestead and exemp­
tion created by law and the distributive share in his estate given
by law to the surviving spouse, except sufficient 4o 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. Sub­
scribing 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 proba­
tion 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 LAW S OF KANSAS
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by K r a u t h o f f , M cG lin t o c k & Q u a n t ,
Attorneys at Law, Kansas City.
(See Card In Attorneys’ List.)
A c k n o w le d g m e n ts . (See Deeds.)
A ctio n s. Civil actions are conducted as required by a code of
rocedure. Security for costs must be given or resident plaintiffs
lay deposit $15 in lieu o f bon d ‘ for costs. Non-resident plaintiffs
may be required to give bond for costs.
A d m in is tr a tio n o f E states. 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. AH demands thus exhibited after the
end of one year and within tWo years. Demands not exhibited within
two years are barred, except as to infants, persons of unsound mind

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or persons imprisoned or absent from the United States, who shall
have one year after the removal of their disabilities. Foreign ex­
ecutors, and administrators with the will annexed, may seu 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.
A ffid a v its. Affidavits may be made in or out of the State by the
same authority and with like authentication, as depositions.
A lien s. Law prohibiting aliens from Inheriting or holding real
estate, repealed 1901. (See Foreign Corporations.)
A rb itra tion s. Persons having controversies may submit them to
the arbitration of any person or persons mutually agreed upon and
may make such submission a rule of any court of record in the State.
The parties may enter into arbitration bonds conditioned tor the
faithful performance of the award.
A rrest. 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 which he fraudulently conceals; or fraudulently con­
tracted the debt.
A ssig n m en ts an d I n s o lv e n cy . Assignments must be for the
benefit of all creditors and only discharge the debtor to the amount
of payments made;
A tta c h m e n t. A t 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 mature 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' con­
tract, judgment, or decree, unless the cause of action arose wholly
within the limits of the State). 2. That the defendant absconded
with the intention to defraud his creditors. 3. That the defendant
has left the county of his residence tp 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 suit is brought. 10. Or that the
suit is brought for damages from the commission of some felony or
misdemeanor. 11. Or that the debtor has failed to pay for any
article or thing delivered for which by contract he was bound to pay
upon delivery. 1A bond in double the amount of plaintiff’s claim is
required except where b y the attachment affidavit defendant is shown
to be a non-resident o f the State.
B an ks an d B a n k in g . There is no constitutional provision relat­
ing 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 sub­
scribed by each, and may contain such other provisions, not incon­
sistent 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 mot 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
oommence 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 con­
tracted 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. Penalties are provided for false statements and lor
receiving deposits when the bank is in a failing condition. Private
banks are subject to the provisions o f the law. The bank commissioner
or deputy, must make examination o f 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 o f one third of their capital and
surplus. Shareholders are additionally liable for a sum equal to the
par value o f stock owned and no more.
Deposit Guaranty Fund. A ny bank having an unimpaired sur­
plus equal to 10 per cent of its capital, may participate in the guar­
anty fund act. Such bank must deposit with the state treasurer
money or bonds of the United States, State of Kansas, or of any
township, school district, board 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 aver­
age 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 commis­
sioner takes charge and winds up its affairs. HeA issues to e a cn
depositor a certificate bearing 6 per cent interest. Any balance aue
after assets are exhausted is payable out of the
Deposits otherwise secured do not participate, nor a bank s obligation
as indorser upon bills re-discounted, nor bills payable, nor money
borrowed from its correspondents or others.
Banks are prohibited from advertising that deposits are guaran­
teed by the State but are permitted to advertise that deposits are
guaranteed by the »Bank Depositors’ Guaranty Fund.
B ills o f E x ch a n g e . (See Notes and Bills of Exchange.)
B ills o f L a d in g . These are g o v e r n e d by the c o m m o n law.

BANKING AND COMMERCIAL L A W S — KANSAS
Bulk Sale. “ The sale or disposal o f any part or the whole o f a
stock of merchandise or the fixtures pertaining thereto, otherwise
than in th e,ordinary course o f his trade or business, shall be void as
against the creditors o f the seller, unless the purchaser receives from
the seller a list o f the names and addresses o f the creditors o f the
seller certified by the seller under oath to be a complete and accurate
list of his creditors and unless the purchaser shall, at least seven days
before taking possession o f the property, or before paying therefor,
notify iu person or by registered mail, every creditor whose name
and address is stated in said list, or o f whom he has knowledge, of
the proposed sale.”
Chattel M ortgages. A mortgage o f personal property, where the
„roperty is not immediately delivered to the mortgagee who retains
actual and continuous possession thereof, is void as against creditors
of the mortgagor and as against subsequent purchasers and mortgagees
in good faith, unless the mortgage, or a copy thereof, is filed in the office
of the register o f deeds in the county where the property is situated,
or if the mortgagor is a resident o f the state, then o f the county of
which he is at the time a resident. A mortgage so filed is invalid
after two years unless within thirty days next preceding such two years
and each two years thereafter the mortgagee, his agent or attorney,
makes an affidavit exhibiting the interest o f the mortgagee in the
property, and files the same in the same manner as the mortgage.
In case of default the mortgagee may sell upon ten days notice.
A mortgage o f exempt personal property is invalid unless executed
jointly by husband and wife where that relation exists.
Collaterals.
Governed by the common law on Bailments and
Pledge.
Conditional Sales. Conditional contracts, by which the owner­
ship 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 su!ch 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 thah
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,” “ com pany," “ association,”
or ‘‘society,” but this does not apply to banks, benevolent or relig­
ious societies. There must be at least five directors, three of whom
must be residents of the State. The annual statement shall be made
by each corporation for profit on or before March 31st o f each year,
showing a complete detailed statement of the condition of such cor­
poration, on the 31st day of December next proceeding. Failure to
file this report within ninety days from time fixed works a forfeiture
of the charter, and a penalty of $5 for each day the report is delayed.
The capital stock can be increased to an amount not exceeding three
times the original amount fixed In the charter and to any further
amount of bona fide fully paid up capital. Capital stock may also
be decreased. Preferred stock can be issued if all the holders of
common stock consent. Dividends can not be declared from any
source other than that» which results from profits. The corporation
can borrow money not to exceed the amount of its capital stock.
Costs. (See Actions.) Corporations (except banks, insurance,
building and loan companies and those not organized for profit) must
pay an annual franchise tax on paid-up capital as follows; N ot over
$10,000, $10; over $10,000 and not over $25,000, $25; over $25,000
and not over $50,000, $50; over $50,000 and not over $100,000, $100;
over $100,000 and not over $250,000, $125; over $250,000 and not
over $500,000, $250; over $500,000 and not over $1,000,000, $500;
over $1,000,000 and not over $2,000,000, $1,000; over $2,000,000
and not over $3,000,000, $1,500; over $3,000,000 and not over
$5,000,000, $2,000; over $5,000,000, $2,500.
Courts. Terms and Jurisdiction. District courts, holding two to
three terms a year in every county, have general original jurisdiction
in law and equity. Regular terms of the probate court are held in
each county on the first M onday in each month and special or adjourned
terms may be held as business may require. Justice’s jurisdiction in
civil actions for the recovery o f money, $300; to recover specific
personal property, $300. The supreme court is the court o f last resort.
Creditors’ Bills. Creditors may bring an action in the nature ol
a creditors' bill to marshal assets or set aside fraudulent conveyances
as in other states.
Days o f G race. Abolished.

Deeds. No particular forms of conveyances are prescribed. As
a rule the form used in other States is sufficient. As between
the parties conveyances are valid without being recorded. The
wife should join with her husband in the conveyance, and any'
conveyance or mortgage of the homestead without her uniting in the
same is absolutely void. If the wife has never resided in the State
her signature is not necessary. Grantors need not attach any seal
or scroll to their signatures, and no witnesses are necessary unless
grantors are unable to write. Corporations convey by deed, sealed
with the corporate seal and signed by president, vice-president, pre­
siding member, or trustee. The acknowledgment must be before a
judge or clerk of the district court having a seal, a justice of the
peace, notary public, county clerk, register of deeds, mayor or clerk
of an incorporated city. Every notary public shall add to his official
signature the date of the expiration of his commission as notary
public. In cases where the acknowledgment is made out of the
State it must ,be made before a court of record, a clerk, or other
officer having the seal thereof, a commissioner of deeds for Kansas,
Justice of the peace or notary public, or before any consul of the
United States resident in any foreign country or port. Deeds and
mortgages must be recorded in the office of the register of deeds of
the county in which the land is situated, or they will be void as to
subsequent grantees in good faith without notice.
Deeds of Trust in the nature of mortgages are not used so far as
sale by the trustee Is concerned. (See Trusts; etc.)
Depositions. Depositions are taken upon notice to the opposite
Party. Courts are also authorized to appoint commissioners to take
depositions. The depositions may be taken before any person author­
ized to take acknowledgments. Each witness must sign his own
deposition. The notice must be attached to the depositions and
inclosed with them. The depositions should be commenced on the
day named, and some portion of a deposition taken on each succes­
sive day. Sundays and national holidays not being regarded. If


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1509

taken by interrogatories and cross-interrogatories, under agreement
or otherwise, each Interrogatory and cross-interrogatory must be
put to each witness and answered so far as he can answer it, and the
answer written down. If the depositions are taken before the mayor,
notary public;, or commissioner appointed as aforesaid, they must
be certified under his official seal. If before any of the other officers
above named, a certificate must be annexed, under the seal of the
court of the county, or the great seal of the State, that the officer
by whom the depositions were taken was, at the time of taking the
same, such officer as he represents himself to be in his certificate.
This should be attached to the magistrate’s certificate.
D escent an d D istr ib u tio n . The homestead is the absolute
property of the widow and children— one-half in value td the widow,
ana the other half to the children, when both survive. The home­
stead can not be divided or sold by an action for partition until all
the children attain majority. One-rhalf of all real estate owned by
husband during coverture, and not conveyed by husband and wife,
nor sold at judicial sale, and not necessary to pay debts goes to the
wife in fee simple: except of land sold by husband whose wife never
resided in the State. Remaining real estate goes to the surviving
children, and living issue o f prior deceased children, children taking
per stirpes, in equal shares, or, if none, the whole estate goes to the
widow. For want o f wife or child or living issue o f deceased child
the whole estate goes to the parents. The rules applicable to widow
of deceased husband apply to husband of deceased wife. Illegitimate
children inherit from the mother, and also from the father, if. his
recognition has been general and notorious, or in writing. When a
child would inherit from either parent, such parent will inherit from
the child. Personal property descends in the same way as real
estate except exempt household furniture is sole property o f surviving
spouse. Property descending b y law or will is subject to an inherit­
ance tax, varying in percentage according to relationship and amount.
(See Exemptions.)
D ow er. Dower is abolished b y law. (See Descent and Distri­
bution.)
E v id e n c e ,! (See Testimony.)
. ’
E xecu tion s may be ordered as soon as judgment is obtained.
There is no stay o f execution in the district court except by super­
sedeas bond which may be given on appeal. In justice’s courts, by
filing bond, stays of execution are granted as follows; On any judg­
ment for $20 and under, thirty days; over $20 and under $50, sixty
days; oveir $50 and not exceeding $100, ninety days; over $100, one
hundred and twenty days. Real estate sold on execution or order
o f sale, g ving the debtor eighteen months in which to redeem. The
debtor is entitled to possession o f the property and rents and profits,
during the period provided for redemption, except in case o f waste.
Receiver may be appointed to prevent waste and may use so much
o f rents and profits as are necessary to repair waste and pay costs
o f receivership.
E x em p tion s. Homestead of 160 acres of farming land, or of one
acre within an incorporated town or city, with buildings thereon,
unlimited in value. All household goods and wearing apparel; two
cows, ten hogs, one yoke of oxen, and one horse or mule or in lieu
of one yoke of oxen and one horse or mule, a span of horses or mules,
and twenty sheep and their wool; necessary food for .the support of
such stock for one year; one wagon, two plows, drag, and other
farming utensils, not exceeding $300; grain, meat, vegetables, gro­
ceries, etc., for the family for one year; the tools and implements of
any mechanic, miner, or other person, kept for the purpose or carry­
ing on his business, and in addition thereto stock-in-trade not exceed­
ing $400 in value; library, Implements, and office furniture of any
professional man necessary for carrying on such trade. Also personal
earnings o f the debtor earned during three months preceding the
garnishment or attachment, and three months’ pension money, where
such earnings or pension money is necessary for the support o f the
debtor’s family, but 10 per cent o f such earnings may be required
to be paid in and applied on the judgment.
.
F oreig n C orp oration s. A foreign corporation doing business in
this State must file a certified copy of its charter or articles o f in­
corporation with the secretary o f state and pay to the state treasurer
the same fees upon the amount of capital invested or used in this
state as a domestic corporation, when it receives a certificate author­
izing it to do business and is then subject to substantially the same
provisions, judicial control, restrictions and penalties as a domestic
corporation. Annual statements must be filled on or before M arch
31st, giving condition on the 31st o f December preceding. I f a
foreign corporation fails to file with the secretary o f state the state­
ment required by law within ninety days after the time provided for,
its right to do business in the State is thereby forfeited. A penalty
is imposed of $5 for each day this report is delayed. Foreign cor­
porations must pay an annual franchise tax on that portion o f their
capital represented by its property and business in Kansas on the
same basis as domestic corporations.
F raud. (See Attachments, Arrest, and Assignments.)
G a rn ish m en t. At or after the time of beginning an action to
recover damages founded upon contract, judgment or decree, or after
the issuance of an execution and before it is returned, if the plaintiff
cause to be filed with the clerk an affidavit stating the amount of his
claim over and above all offsets, that he believes that some person,
naming him, indebted to, or has property in his possession or under
his control belonging to the defendant, and that such defendant has
no property liable. to execution sufficient to satisfy his debt, and
that the indebtedness or property so held is not by law exempt
from seizure or sale upon execution, the clerk shall issue a garnish­
ment summons. In the - district courts bond in double amount
claimed is required on garnishments before judgment, except where
defendant is a non-resident. N o bond required in justice courts.
G u a ra n ty C om p an ies. , (See Trust Companies.)
H olid ay s. The following are legal holidays: January 1st, known
as New Years Day. February 12th, Lincoln’s Birthday. February
22nd, Washington’s Birthday. M ay 30th. Memorial Day. July 4th,
Independence Day. First M onday in September, Labor D ay. Oc­
tober 12th, Columbus Day. (but does not affect commercial paper).
December 25th, Christmas Day. i f any of these days fall on Sun­
day the next secular or business day is a legal holiday. Legal pro­
ceedings bad on a holiday, except Sundays, are valid.
H u sban d an d W ife. (See Married Women.)
In ju n ctio n s . Injunctions may be granted by a district court or
by the judge (thereof at the beginning of an action or afterwards, in
his discretion. A bond must be given to protect the defendant
against any loss In case the injunction is wrongfully obtained. In
the absence of the judge from the county the probate judge may
giant temporary injunctions.
In s o lv e n cy . (See Assignments.)
In terest. Legal rate, 6 per cent, but 10 per cent may be agreed
upon. Excess of 10 per cent is forfeited, and ip addition thereto there
shall be deducted from the amount due for principal, with lawful
Interest, an amount equal to the Interest contracted for in excess of
10 per cent. The legal interest originally contracted for Continues
until the debt Is paid, and no additional interest can be charged by
way of penalty for default except from date of default. A purchaser
o f a negotiable note for value before maturity, without notice, takes
the note free o f the usurious taint,
,
J u d g m en ts. Judgments of courts of record are liens on the real
estate of the debtor within the county from the first day of the term
at which the judgment was rendered: but judgments b y confession
and judgments rendered at the same term during which the action

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was commenced are liens only from the day on which the judgment
was rendered. Judgments lose their priority over subsequent judg­
ments unless execution is issued and levied within one year after
judgment. A certified copy o f the judgment may be filed in the
office of the clerk of the district court of any other county and the
judgment will then be a lien on real estate in that county, but execu­
tion can only issue from the court in which thè judgment is rendered.
J u ris d ic tio n . (See Courts.)
L icen se. * Agents of insurance companies are required to take out
licenses from the superintendent of insurance. Cities are authorized
to enact license ordinances and certain classes o f business are required
to take out a license.
L ien s. Mechanics, material-men, and laborers, both original con­
tractors, and sub-contractors, and laborers o f sub-contractors, are
entitled to obtain liens upon real estate for labor performed or material
furnished in the erection or repair o f any building. Sworn statements
itemized as fully as practicable as to tne amount o f the claim, for
what and when it was rendered and by whom, giving names o f con­
tractor and owner and description o f property and date o f last material
furnished, must be filed in the office o f the clerk o f the court. Original
contractor’s lien claim must be filed within 4 months from date of
last materials, or labor furnished and others entitled to lien within
sixty days 'after last materials or labor furnished. Lien claimants
other than original contractors, must give immediate notice o f filing
o f lien claim to owner or person in possession o f the premises, where
that may be done, otherwise must post notice on the premises.
Supreme court has rendered notice almost unnecessary. Aetion to
foreclose lien must be begun within one year after filing claim. Liverystable keepers, forwarding merchants and common carriers have liens.
(See Judgments.)
L im ita tio n s o f S uits. An action for the recovery of real property,
sold on execution or by executors, administrators, or guardians,
brought by the execution debtor, or the heirs, ward, or guardians,
within five years after the deed is recorded. Other actions for
recovery of real property, within fifteen years. On official bonds
and contracts in writing, five years. Contracts not in writing, three
years
Trespass, detinue, replevin, injuries not arising on contract,
and relief on the ground of fraud, two years. Action for libel, slander,
malicious transaction, or false imprisonment upon a suit for penalty
or forfeiture, one year.
Action for any other relief not before
provided for, five years. In any case founded on contract, part
payment, or an express written acknowledgement or promise, renews
the contract. The statute runs from the date o f such renewal.
M arried W o m e n . The real and personal property owned by a
woman at the time o f her marriage, and any property which comes
to her by descent, devise, or bequest, or gift of any person except her
husband, remains her sole and separate property notwithstanding her
marriage, and is not subject to the disposal of her husband or liable
for his debts. Married women may sell and convey their real and
personal property arid enter into any contract with regard to the
same in the same manner and to the same extent as a married man
may in relation to his property. She may sue and be sued in the
same manner as if she were single. She may carry on any trade or
business, perform labor or services for her separate acoount, and her
earnings or proceeds from labor, trade, or business remain her separate
property, and may be used and invested b y her in her own name.
She may also contract with her husband with the same effect as
though the married relation between them did not exist.
M in e s an d M in in g . The law provides for the appointment of a
mine inspector with authority to require mine owners to provide
certain facilities for the health and safety of persons employed and
compel proper ventilation, regulate excavations, air courses, etc.
M ortg a g es. A mortgage o f real estate, to be valid as against
subsequent bona-fide purchasers without notice, must be duly ac­
knowledged and recorded in the office o f the register o f deeds o f the
county where the land is situated. Mortgages may be discharged on
margin o f record b y mortgagee or attorney or assignee by duly
acknowledged power o f attorney or assignment in presence o f register,
or b y satisfaction entered on the instrument when copied on the
margin by the register; or by an independent release duly acknowledged
and recorded. W ife must join in all mortgages except those for
purchase money, .except in cases where she has never been a resident
o f the State. Mortgages are foreclosed b y suit only. B y an act
o f the Legislature which took effect M ay 18, 1893, real estate sold
under foreclosure o f mortgage is subject to eighteen months redemption.
I f the mortgage foreclosed is on abandoned property or not occupied
in good faith and the court so finds, six months only is allowed for
redemption. This act does not apply to mortgages executed prior
to the date the act took effect. When a mortgage is assigned the
assignment should be acknowledged and recorded. I f the assignment
was executed prior to M arch 15, 1899, it can be recorded whether
acknowledged or not, and under the laws must be recorded within
four months from that date or payment to the recent owner o f 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 Execu­
tions.)
N otaries. Notaries are appointed b y the Governor and serve for
four years. They give bond in the sum o f $1,000 and are required
to affix the date o f the expiration of their commission to all certifi­
cates.
N otes an d B ills o f E xchange- Uniform Negotiable Instrument
A ct took effect June 8, 1905. V
P artn ersh ip s. Limited or special partnerships may be formed
for any legal purpose except banking or insurance. Such partnerships
may consist of one or more pérsons who are general partners, and
one or more who contribute a specific amount of capital and shall
be called spècial 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.
P ow er o f A tto r n e y . (See Deeds.)
P rob ate L aw . (See Administration.)
P rotest. (See Notes and Bills.) ,
R e co rd s. (See Deeds.)
.
R e d e m p tio n . (See Mortgages.)
\
R e p le v in . The plaintiff in an action to recover the possession of
specific personal property may claim the Immediate delivery of the
same 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.
S ervice. All service of process is made b y the sheriff or b y con­
stables, or b y 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.
S uits. (See Actions.)
T axes. One-half the annual levy for taxes becomes due Decem­


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ber 20, and If not paid the whole amount becomes due and there in *
penalty of five per cent added. If th e whole amount is paid there
Is a rebate of 5 per cent on the last half. If not paid by June 20 «?
the succeeding year, another 5 per cent penalty is added W h en
the tax upon real estate is delinquent, it is sold for taxes on'the fl™t
Tuesday in September following. After sold it bears interest at thl
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 year»
from date of sale. The interest of a minor may be redeemed at anv
time within one year after he attains his majority, and idiots and
Insane persons may redeem within five years after the sale.
T ru st C om p an ies. 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 b y 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 fidelitv
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 stock­
holder in the sum of not less than $1,000. Trust companies are
under the supervisioh of the bank commissioner and subject to his
examination. •\
T ru sts a n d P ow ers. All trusts concerning lands must be created
in writing except such as arise by implication of law.
W areh ou se R eceip ts. Practically the Uniform “ Warehouse
Receipts Act.
W ills. A ny person of full age and sound mind and memory, hav­
ing 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 and the estate given
a spouse b y statute. 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 witnesseswho saw him subscribe or heard him acknowledge it. Wills executed
without the State in the manner prescribed by the law either of the
place where executed or o f the testator’s domicile or of the State o f
Kansas are declared legally executed. Compliance with these re­
quirements 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, m ay be admitted to record
m the probate court of the county in which such property is situated,
by producing an authenticated copy o f the will and order o f probate
admitting it to probate by the proper cofirt o f the county and State
o f which deceased died a resident. Every will, when admitted to
probate, shall be filed in the office o f the probate^court and recorded.

SYNOPSIS OF

THE LAW S OF KENTUCKY
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by W a l s h a n d G o d f r o y , Esq.,
Attorneys at Law, Louisville.
(See Card In Attorneys’ List.)
A c k n o w le d g m e n ts . Deeds executed within the State may be
acknowledged before the clerk of a county court or a notary public,
or may be acknowledged before and proven by two witnesses. Deeds
executed without the State and within the United States must be
acknowledged before the clerk of a court or his deputy, notary public,
mayor of a city, secretary of state, commissioner of deeds, or judge of
a court; if executed without the United States must be acknowledged.
before a foreign minister, consul, or secretary of legation of the United
States, or the secretary of foreign affairs, or judge of a superior court
of the nation where the’ deed shall be executed, attested in either case
by the officer’s seal of office. When the acknowledgment is taken,
the officer may simply certify that the deed was acknowledged before
him. and when it was done.
A c tio n s . Actions are commenced by filing in the clerk’s office of
the proper court a petition setting forth the cause of action and
causing a summons or a warning order to be issued thereon. Non­
residents and corporations, other than banks, created by laws of this
State, are required to give security for costs.
A d m in is tr a tio n o f E states. Personal estates of deceased per­
sons 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 thè 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.
A ffid a v its. 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-com­
missioner. 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.
A ppeals. Appeals may be taken from »a justice’ s court to the
quarterly court regardless o f the amount in controversy; from the
quarterly court to the circuit court when the value in controversy,
exclusive o f interest and costs, exceeds 825; from the circuit court to the
court o f appeals as a matter of right in all cases in which the title to
land, or the right to an easement therein, or the right to enforce a
statutory lien is directly involved, and in all cases when the value
in controversy, exclusive o f interest and costs, amounts to $500 or
more, but when such amount in controversy exceeds $200 and is less
than $500, the party deserving the appeal, may upon payment of the
tax and filing the record in the clerk’s office o f the Court o f Appeals,
enter a motion that the appeal be granted. I f the court upon exam­
ination o f the record decides the appeal should not be granted, the
motion shall be overruled without a written opinion, and no petition
for a rehearing will be entertained, but if the court should be o f opinion
the ends o f justice require the judgment be reversed then the appeal
will be granted and a written opinion will be filed. N o appeal lies
to the court o f appeals from any judgment o f a quarterly, city, police,
fiscal or justice’s court, nor from any judgment o f the county court.

BANKING AND COMMERCIAL L A W S — KENTUCKY
Arbitration. All controversies which might be the subject of a
„it mav be submitted to the decision of one or more arbitrators, or
i«n and their umpire. The submission may be in writing or by
„trv of record, and the agreement of submission shall be binding on
the narties thereto, if it states the matter to be submitted and who
» to be the arbitrators. Each arbitrator and the umpire. If' one
h* chosen, shall take an oath to decide the matter in controversy
tairlv and impartially according to law, justice and the equity of
the whole case. The award must be in writing signed by each arbi­
trator and the umpire, if any, and shall be a final settlement of the
mntroversy 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
bv the court in which the action is brought or pending, at Its com­
mencement, or at any time before judgment, if an affidavit of the
niaintifl be filed in his office showing: 1. The nature of plaintiff’s
eiaim 2. That it is just. 3. The sum or value, which the affiant
believes the plaintiff ought to recover. 4. That the affiant 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 an d I n s o lv e n cy . 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 pay­
ment 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,
shhll be paid in full before the general creditors receive anything.
The Intent of the assignor 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,
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 pro­
ceedings as may be necessary to recover same. If, upon demand,
he refuses to do so. any creditor may, and the property so recovered
shall become a part of the estate, and be distributed as other assets.
If creditors representing one-half in number and two-thirds o f the
amount of debts against the estate shall so request in writing, the
court shall remove the assignee and appoint another in his stead.
Attachm ents. The writ may Issue against a defendant who is a
foreign corporation or non-resident of the Stater or has been absent
from State four months; or has left the State with intent to defraud
creditors; or has left his county to avoid service of summons; or
so conceals himself that summons cannot be served; or is about to
remove, or has removed his property or material part out of the
State not leaving enough to satisfy claim of plaintiff or defendant’s
creditors; or has disposed or is about to dispose of or sell his property,
or permitted to be sold or disposed of with fraudulent intent to cheat
hinder or delay creditors. Also In action for money due upon con­
tract judgment or award, if defendant have no property in State
subject to execution, or not enough to satisfy plaintiff and collection
will be endangered by delay in obtaining judgment and return of
nulla bona. Also in action for personal property ordered to be
delivered to plaintiff which as part thereof has been disposed of.
removed, or concealed, so that order of delivery can not be executed.
Affidavit as prescribed by civil code and bond required, except no
bond required in action upon nulla bona return.
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 organ­
ized 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. A Department o f Banking, providing for a
Banking Commissioner, deputy commissioner and examiners o f State
banks, and prescribing their duties and for the examination o f all
financial institutions organized and doing business under the laws of
the State was created by a law effective July 1st, 1912.
Chattel M ortg a g es an d D eeds o f T ru st. No deed o f 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 per­
son 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.
Checks. The issuing o f checks in this State upon banks where
the drawer has not sufficient funds on deposit to pay same is now a
criminal offense. I f amount under $20.00 it is a misdemeanor, and
the penalty $100.00 or jail confinement one to thirty days, or both
such fine and imprisonment in discretion o f the Court or Jury. I f
the check be for $20.00 or more, it is a felony and confinement in
penitentiary for not less than one or more than two years, but if
the drawer o f the check shall pay same within twenty days after
receiving notice o f the, dishonor o f the check, he shall not be prose­
cuted; or if the prosecution has been begun, it shall be dismissed at
cost of the maker o f the check.
Contracts. A seal or scroll is in no case necessary to give effect
to a deed or other writing. All unsealed writings stand upon the
same footing with sealed writings, having the same force and effect,
and the same actions may bé founded upon them. The State or
oojrnty seal, or the seal of a court, corporation, or notary to any
writing has not, however, been dispensed with.
Conveyances. (See Acknowledgments.)
Corporations formed under the general laws for transaction of
auy lawful business. Special regulations prescribed for foreign cor­
porations doing business in the State, and for banking, building and
loan, trust, insurance, and railroad companies. Cumulative voting
prescribed. Stockholders in banks, trust companies, guaranty com­
panies, Investment companies and insurance companies are liable
f$M9X and ratably, ana not one for the other, for all contracts and
uaouitles 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
• 8 are
same manner and to same extent as other stockholders,
transfer of stock operates as a release, of any such liability,
existing at time of transfer, provided action to enforce the liability


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Federal Reserve Bank of St. Louis

1611

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 onè-tenth of 1 per cent on
its capital stock, corporation is deemed organized; but, before trans­
acting 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.
C ou rts. General civil and criminal jurisdiction is vested in cir,
cuit courts which hold terms in each county as provided by statute.,
C redits. B y an Act approved March 14, 1914, it is provided
that a person who shall knowingly in person or through any agency
make any false statement in writing with intent it shall be relied
upon, respecting his financial condition, or means or ability to pay,
for the purpose o f procuring delivery o f personal property, the pay­
ment o f cash, the making o f a loan or credit, or extension o f credit,
and procures upon faith thereof either or any of the things or benefits
mentioned, shall be guilty o f a felony and upon conviction, shall
be confined in the penitentiary not less than one nor more than five
years.
D ays o f G race. (Sec Nptes and Bills of Exchange.)
D ep osition s 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, depo­
sitions are required to be taken upon interrogatories. If all parties
against whom they are to be read have been constructively sum­
moned 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,
o r notary public. Depositions may be taken out o f this State before
a commissioner appointed by governor o f this State òr 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 ór 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.
D escen t an d D istrib u tio n o f P rop erty . The real estate of a
person dying intestate shall descend in parcenary to his kindred, male
and female, in the following order, viz: (1) To his children and
their 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: (5) to the grandfather and grandmother, or which­
ever 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 entitle^ to take are dead, leaving descendants such descend­
ants 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.
D ow er. (See Husband and Wife.)
e x e c u t io n s 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 falling 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, defend­
ant 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.
E x em p tion s. The following property o f persons with a family
resident in this Commonwealth, shall be exempt from execution,
attachment, distress, or fee bill, namely: Tw o work beasts, or one
work beast and one yoke o f oxen; two plows and gear; one wagon
and set of gear, or cart or dray; two axes, three hoes, one spade, one
shovel; two cows and calves; beds, bedding and furniture sufficient
for family use; one loom and spinning wheel and pair of cards; all
the spun yam 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 seventy-five dollars in value; two
saddles and their appendages; two bridles; six chairs; or so many
as shall not exceed ten dollars in value; one cradle; all the poultry
on hand; ten head of sheep, not to exceed twenty-five dollars in value;
all wearing apparel; sufficient provisions, including breadstuff and
animal food to sustain the family for one year; provender suitable
for live stock, if there be any such stock, not to exceed seventy dollars
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 Arty dollars 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 twenty-five dollars; ninety
per centum o f the salary, wages, or income earned by labor, o f every
person earning a salary, wages, or income o f seventy-five dollars or

1612

BANKING AND COMMERCIAL L A W S — LOUISIANA

less per month, provided that the lien created by service o f garnish­
ment, execution, or attachment, shall only affect ten per centum
o f such salary, wages, or income, earned at the time of service of
process; o f the salary, wages, or income earned by labor, o f every
person earning a salary, wages or income in excess of seventy-five
dollars per month, sixty-seven and one-half dollars per month and
no more shall be exempt.
Tools of a mechanic, not exceeding one hundred dollars in value;
libraries o f ministers o f the Gospel, professional libraries o f lawyers,
professional libraries and instruments o f physicians and surgeons, not
to exceed in value five hundred dollars. In addition to personal
property there is for actual bona fide housekeepers with a family
resident in this Commonwealth a homestead exemption o f so much
land including the dwelling house and appurtenances owned by
debtor as shall not exceed in value one thousand dollars. This
does not extend to a mortgage on or purchase money due for the land
or for debts or liability existing prior to the purchase o f the land, or
o f the erection o f the improvements thereon.
Personal property or money on hand or in bank to the amount o f
$750.00 shall be exempt from distribution and sale and shall be set
apart by the appraisers o f the estate o f an intestate to his widow and
children, or, if no widow, to his infant children or child surviving him.
The appraisers shall state in their appraisement the money oh the
articles and value o f each set apart by them to the widow, or infants,
separately to the articles appraised for sale, but if the widow be present
at the time o f the appraisement, or any one authorized by her in
writing, she may make her selection out o f the property appraised to
the amount o f said $750.00 and said appraisers shall so report. The
provisions o f this section shall apply to cases where the husband dies
testate, and the widow renounces the provisions o f the will in the
time prescribed by law.
H olid a y s. The 1st day of January, the 22d day of February, the
30th day of May, the 4th day o f July, the first Monday in September
(Labor Day), the 12th day o f October (Columbus Day), the 25th
day o f December o f each year, and all days appointed by the president
o f the United States, or by the governor o f this State, as days of fasting
and thanksgiving are declared holidays, and shall be treated as Sun­
day. I f any o f those days named as holidays shall occur on Sunday,
the next day thereafter shall be observed as a holiday.
H u sban d an d W ife. By an act which took effect June 12, 1894,
the following important changes were made In the common law of
coverture which theretofore prevailed in Kentucky. Marriage gives
to the husband during the life of the wife no Interest In any of
the wife’s property. She has full power to contract and to bind
herself and her property, except that she can not bind herself to
answer for the debt, default, misdoing o f 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 for­
feited 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.
In te re st. 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.
J u d g m e n ts. ■A judgment does not constitute a lien on property
in this State. All judgments bear interest from their dates. (See
Executions and Limitations.)
.
L im ita tio n s. The following are the periods within which actions
must be brought, the time commencing to run from the accrual of
the 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 dam­
ages for withholding sa me; for the specific recovery of personal prop­
erty; actions upon negotiable instruments, though as to the makers
o f an undiscounted note it is fifteen years and as to sureties seven
years; actions upon accounts between merchants, and actions for
relief from fraud or mistake. Two years: Actions upon merchant’s
accounts for goods sold. One year: Actions for injury to person or
character and for breach o f promise o f marriage.
N otes and B ills o f E x ch a n g e . 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 require­
ments. (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.
P ow ers o f A tto r n e y . Powers of attorney to convey real or per­
sonal 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 pur­
chasers, then the power must be lodged or recorded in like manner.
P ro te st.
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
o f exchange. It is the safer practice to protest in all cases, because
in all cases notice o f dishonor is necessary to charge parties secondarily
liable.
T a x a tio n . Taxes due the State by banks and trust companies are
avable directly into the State treasury on or before the first day of
uly 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.
W ills. 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
erson In his presence and by his direction. If not wholly written
y 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 accord­
ing to the law of the domicile; but to be valid as to lands, it must be
executed as required by the law o f this State. The county court
has exclusive original jurisdiction over the probate of wills.


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Federal Reserve Bank of St. Louis

SYNOPSIS OF

THE LAW S OF LOUISIANA
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by Messrs. M e r r i c k , G e n s l e r & S c h w a r z
Attorneys at Law, New Orleans.
(See Card in Attorneys’ List.)
vw w

AW Auu n

m o u VD.,

„ A c k n o w le d g m e n ts of deeds executed within the State may be
made before a Judge, notary public, parish recorder or his deputy in
the presence of two witnesses. These witnesses must be over fourteeE
years of age. In other States, before a commissioner of Louisian»
or any officer authorized to take depositions In the State where he
resides, but the official character of such officer must be proDeilv
verified. A Louisiana commissioner may certify to the official posi­
tion of any public officer in the State for which he is appointed A
deed to be authentic and to be admissible in a court of lustice with
oat other proof of signature, must be acknowledged and signed befnrp
a notary or commissioner of deeds. In other states any oath or
acknowledgment made before a notary public, duly appointed in such
states, when certified under the hand and official seal of such notary
shall have the same force and effect without further proof of the
signature, seal and official character of such notary, as if taken or
made by or before a Louisiana commissioner residing in such State
Act 140 of 1896. In foreign countries every deed, conveyance, mort­
gage, sale, etc., made or taken before any ambassador, minister
charge d affaires, secretary of legation, consul-general, consul, vice^
consul, or commercial agent, and every acknowledgment, attestation
or authentication of any of said instruments, oaths, etc., made by
any of said officers under their official seals and signatures shall have
the full force and effect of an authentic act executed in this State
No witnesses necessary. Party appearing before any of said officers
need not be a resident of the place where said officer is located
Notarial copies of original when deposited In this state in a notary’s
office have full force and effect of authentic copies of acts executed
in this State. [Act 164 of 1898.]
A c tion s. Commenced b y petition setting forth cause of action
articulately in numbered paragraphs, signed by plaintiff or his attorney
and duly sworn to. Plaintiff must give resident security for costs or
make deposit to cover same if demanded. (See Act 300 of 1914
regulating pleadings and practice.) After filing o f petition, defendant
is cited to appear ten days after receipt o f citation in District Courts
and Justice o f Peace cotuts outside of city o f New Orleans. In city
courts o f New Orleans, defendant must appear three days after receipt
o f citation. Neither day o f service nor day on which answer must
be filed is included in delay. I f defendant fails to appear, judgment
by default is rendered against him. In district courts such judgment
is confirmed two judicial days after preliminary entry of default. In
Justice o f Peace courts judgment o f default is confirmed the same day
as that on which default is entered.
A d m in is tr a tio n o f E states by executors, administrators, or
tutors who are ex-officio administrators— also by dative executors—
where there is no heir present or agent of heir, public administrator
takes charge. A non-resident executor of a will must in all cases give
bond; a resident does not unless required by creditors. Administra­
tors and exeoutors of other states must open succession of deceased
in the courts of this State, and be reoognized as such here before they
can sue or be sued or transfer property in this State. Stock in local
corporations may be transferred by non-resident, executors, eto.,
without/ the necessity of securing an order from the local court, but
no transfer can be made until the inheritance tax is adjusted. No
debts can be paid by administrator without authorization of probate
court. The administrator or executor presents to the court an
account or tableau o f distribution setting forth the payments and
disbursements he proposes to make. Parties interested are notified
by publication to show cause within ten days why the account so filed
should not be approved. Any party interested may oppose the
account by opposition in writing at any time within the said ten days.
In absence of opposition account is homologated upon production of
satisfactory evidence by administrator or executor, and the funds
ordered distributed in accordance therewith.
Claims against estates should be presented in writing to the admin­
istrator or executor. Should he approve the same in writing, no
further action is required except to see that the claim is placed upon
his account when filed. Should he decline to recognize the claim,
creditor may file suit against succession representative and obtain a
judgment to be paid in ordinary course o f administration. I f there
is no dangtr of prescription, creditor may await filing o f account and
then oppose same o f claim, not included.
A ffid a v its. (See Acknowledgments.)
A lien s. There is no law excluding them from buying or holding
lands. They are only excluded from voting.
A r b itr a tio n . Agreements to submit to arbitration recognized by
law. Arbitrators must be sworn, otherwise decision is not binding.
State board of arbitration of labor troubles established. [Act 139
of 1894.]
A rrest for debt may be made on affidavit that the debt is really
due, and that petitioner verily believes that debtor Is about to remove
from the State permanently, without leaving in it sufficient property
to satisfy his demand; and that he does not take his oath with inten­
tion of vexing debtor,' but only in order to secure his demand. Debtor
may be discharged by disproving facts; by giving bond, by making
surrender, by delivering to sheriff property sufficient to satisfy
demand. Arrest of the debtor only secures his presence to answer
the suit; he cannot be held for the payment o f the debt. Minors,
interdicted. person and women not subject to arrest for debt.
A ssig n m en ts an d In s o lv e n cy . State Insolvent laws superseded
by National Bankruptcy act.
A tta c h m e n t. Writs of attachment Issue on application of credi­
tor, under oath, when the debtor resides out of the State; when he
conceals himself to avoid being cited; when he has mortgaged, assigned
or disposed of, or is about to mortgage, assign; or dispose of his
property, rights, or credits, or some part thereof, with intent to
defraud his creditors or give an unfair preference to some of them;
and when he has converted, or is about to convert, his property into
money or evidences of debt with intent to place it beyond the reach
of his creditors, or, if debt not due, is about to remove his property
out of the State. Creditor must furnish bond equal to the amount
claimed to be due, with at least one solvent surety, residing within
the jurisdiction of the court, conditioned for payment to any party
injured by issuance of writ of all damages sustained by him in case
it Is decided that the attachment was wrongfully obtained. (Act
No. 7, 1888.) Garnishment may be had as an accessory either to
a writ of attachment or fieri facias.
B an k s. Banking corporations organized under banking laws
adopted in 1855, amended in 1888, In 1892, and in 1902. Savings,
deposit, and trust- companies provided for by A ct 150 of year 1888,
amended by A ct 95 of 1892, which Is now amended by Act 189 oi

BANKING AND COMMERCIAL L A W S — LOUISIANA
ian2 The number oi persons organizing must be five or more. No
anî>clai act oi incorporation can be passed. By Act 189 ot 1902.
îhp aenérai banking act o f 1855 and the amendatory acts o f 1888 and
«? <892 are amended as follows: 1. Period of timq.must be fixed
m kot not to exceed ninety-nine years.
2.
Banks can not nold real
State for longer time than five years, except such as necessary for
ike transaction of their business, or except that held as agent or
trustee 3. All managers and directors shall be citizens of Louisiana.
Ï Safe deposits and trust banks without power to issue bank notes,
m*v be organized under this law with a capital of $50,000 or more,
nf which capital at least $10,000 shall be paid up before commencing
business. In incorporated towns with less than 20,000 inhabitant?
must have cash capital of not less than $30,000, which must be paid
no before can commence business. It may be made a receiver,
trustee, assignee or syndic, and execute trusts of every description.
Money or other valuables deposited by married women or minors
may be drawn out without the authority of their husbands or tutors,
finder Act 45 of 1902, banks organized to do a savings, safe deposit
and trust banking business must be composed of more than five
nersons, may be organized for not longer than ninety-nine years,
may not hold real estate for longer period than ten years, except
such as Is held as agent or trustee, or necessary for transaction of
their business: may accept and execute trusts or agencies of all
descriptions, may be appointed b y any person or by court executor,
administrator, syndic, receiver, curator, tutor, trustee or assignee.
Capital stock considered as security for faithful performance of duty,
though court may require other security, and may require the state
examiner of banks to investigate the affairs and management of
the bank. Such banks can not issue notes and must have a capital
not less than $100,000, which must be paid up in cash. (See Act 121
of 1910, amending A ct 45 of 1902 as to capital required In cities of
less than 30,000.) (See also Act 179 of 1902. and amendment thereof,
Act 140 of 1906 and amendment thereof Act 152 o f 1910 and amend­
ment thereof Act 96 o f 1912.) Act 238 o f 1910, amending Act 46
of 1902, provides for branches. A ct 112 o f 1910 creates a State
Banking Department having supervision over all state banks. Amend­
ed by Act 48 o f 1912.
Chattel M ortgages not legal in this State except as to lumber,
logs, live stock, vehicles of all kinds, all kinds o f machinery, all well
casing, line pipes, drilling rigs and tanks.
These may be mortgaged
but the mortgage on such properties not legal unless it is owned by
the mortgagor in excess o f movable property granted him and ex­
empted from seizure under Act 244 o f the Constitution o f 1898.
(See Act 65 of 1912, amended by Act 155 o f 1914.)
Collaterals must b.e delivered to be effectual,
Act 9. o f 1914
makes it a felony for a customer o f bank to wrongfully dispose o f
collateral security pledged to bank. Uniform Bills o f Lading law
obtains. (Act 94 of 1912.)
Conveyances. All agreements affecting real property must be
In writing, and transfers and mortgages, etc., must be recorded In
the place where the property is situated to affect the rights of third
is. Deeds are made under private signature or by act passed
a notary public In the presence of two witnesses. Both vendor
and vendee sign, though signature of vendee Is not essential, as any
act of acceptance will answer. The notary in Parish o f Orleans pre­
serves the originals o f deeds passed before nim and certified copies
given by him are received as evidence in the courts. Every notarial
deed should contain (1) date o f act and place where it was passed, (2)
names and surnames and qualities o f contracting parties, (3) description
of the property, etc., (4) price o f transfer and terms and conditions.
(5) The marital status o f all parties must be given. When a married
woman executes a deed she must be authorized by her husband. The
husband acts alone in the sale o f community property: the signature
of the wife being unnecessary.
Corporations. Any number of persons, exceeding six, may form
themselves Into corporations for literary, scientific, religious, and
charitable purposes; for works of public improvement, and generally
all works of public utility and advantage; and any number of persons,
not less than three, may form themselves Into a corporation for the
purpose of carrying on mechanical, mining, or manufacturing business,
except distilling or manufacturing intoxicating liquors, with a capital
not less than $5,000 or more than $1,000,000. Any number of per­
sons, not less than three, may form themselves into a corporation on
complying with the general corporation laws, for the purpose of carry­
ing on any lawful business or enterprise not otherwise specially pro­
vided for, except stock-jobbing. Fifty per cent o f capital stock must
be subscribed before filing articles o f incorporation and 50 per cent
of all stock subscribed must be paid in before corporation en­
gages in business and the remainder in twelve months under
penalty of dissolution. .The legislature can not pass a special act
conferring corporate powers. Corporation committing a trespass
or damage may be sued at place where it occurred. [Act 22 o f
1894.] All corporations hereafter organized must have their char­
ters, etc., recorded in the office of the secretary o f state. [Act
59 to 1898.] (See act 154 o f 1902 for formation o f corporations for
works of public improvement.)
Act 120 o f1902 provides for organ­
ization, etc. of local and foreign building and loan or homestead
associations. Three or more persons may form a corporation to
carry on any business specified In charter that would be lawful for
any Individual to carry on. May carry on any named business or
. different branches of business, whether related or not. Must have
capital of net less than $3,000.
[Act 78 of 1904.]
No corporation
can declare dividends out of its capital stock, under penalty of for­
feiture of its charter. Meetings of corporations must be held at
domicile (Act 63 of 1910) .
Foreign Corporations may be licensed and taxed by a mode differ­
ent from that provided for home corporations. No domestic or for­
eign corporations shall do any business in this State without having
one or more known places of business and an authorized agent or
agents In the State upon whom process may be served. All corpora­
tions (except mercantile corporations) domiciled out of the State and
doing business in the State in default of filing with the secretary of
state A declaration of the place of its locality or domicile together with
the name of its agent In the State upon whom service of process may
be made, may be sued upon any cause of action In any parish where
the right of action arises.
Foreign corporations must file in office of secretary of state a written
declaration setting forth1and containing the place or locality of Its
domicile, the places in the State where it is doing business, and the
name of Its agent or other officer in this State upon whom process may
Deserved. (Act 54 o f 1904 amended By Act 284 o f 1908. Act 284
of 1908 amended by Act 243 o f 1912. See Act 194 o f 1912.)
Act 267 o f 1914 relatin g to co rp o ra tio n s repealed several'
previous acts an d un dertakes to e m b o d y in on e a ct all essennai details w ith resp ect to th e org an ization , pow er an d duties
9* trading corp oration s, fo re ig n an d d o m e stic. (As to n o n trading corporations see Act 259 o f 1914.) '
t„ * ? u r t s '
Terms and Jurisdiction. In parishes other than Orleans :
¿“Jtlces’ courts— exclusive jurisdiction up to $50, and concurrent
with the district courts, between $50 and $100. 2. District courts—
®?.bcurrent with justices’ courts, between $50 and $100; exclusive for
miBBm matters over $100, and In all probate matters and appellate
i ^'ction in all civil matters In justices’ courts. In Orleans parish:
MdSoil. courts— exclusive jurisdiction up to $100. 2. Civil district
ttnin3—exclusive over $100. Justices and city courts open at all
Uni?8’ *n Parishes other than Orleans, district courts shall hold con­
tinuous sessions during ten months of the year. In parish of Orleans,

S


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Federal Reserve Bank of St. Louis

1613

civil district court sits from October 15th to end of June, but shall
remain open on all legal days during the whole year for granting inter­
locutory orders, issuing writs, trials of rules to quash same, trying
proceedings instituted, or od appeal therein by a landlord for the
possession ot leased property, partition proceedings, ano for such
special probate and insolvency business, as the court en banc may by
rule determine. On all amounts up to $2,000, Inclusive, an appeal
may be taken to the court of appeals, from the city and district courts
respectively, and on all amounts over $2,000, to the state supreme
court. An appeal lies on both law and facts. Appeals from the city
courts shall be tried de novo.
D ays o f G race. Abolished.
D ep osition s. To take testimony of witness residing out of parish
or State it is necessary to file motion duly sworn to showing non-resi­
dence and materiality of evidence. Written interrogatories are pre­
pared and served on opposite party, or his counsel, who has three days
in which to cross. Commission then issues, directed to some proper
officer, with interrogatories and cross interrogatories annexed, who
must cause witness to appear before nim to answer under oath the
direct and the cross, interrogatories. He should reduce answer to
writing, read same to witness and cause witness to sign same. The
officer then prepares a process verbal of the whole, attaches it to the
commission, interrogatories, etc., and should return same to the court
issuing the commission within the time fixed therein for taking the
deposition. The deposition of a fugitive from justice is not admissible
In evidence. (Also see Act 176 of 1910.)
D escen t. If one dies leaving no descendants, but a father and
mother and a brother and sister, or descendants of these last, the
succession is divided into two equal parts, one goes to father and
mother, the other to brothers and sisters or thèir descendants. If
either father or mother of deceased dies before him, the portion which
would have been inherited by such deceased parent goes to the
brothers and sisters of the deceased, or their descendants. If deceased
left neither descendants nor brothers nor sisters, nor descendants from
them, nor father nor mother, but only other ascendants, they inherit
to the exclusion of all collaterals. If ascendants in paternal and
maternal lines are all of the same degree, the estate is divided into
two parts, one goes to ascendants on the paternal and the other to
ascendants on the maternal side. I f there is in the nearest degree
but one ascendant in the two lines such ascendant excludes all other
ascendants of a more remote degree. I f one dies leaving no descen­
dants, apd his father and mother survive, his brothers and sisters,
or their descendants, take half o f his estate. I f the father or mother
only Survive, brothers and sisters, or ,their descendants, take threefourths. If one dies leaving no descendants nor father nor mother,
his brothers and sisters, or their descendants, take all the estate.
The partition of the half, the three-fourths, or the whole o f a suc­
cession falling to brotherx and sisters as above set forth, is made equal
if they are o f the same, marriage, if o f difleren* marriages the succession
is equally divided between the paternal and maternal lines o f the
deceased. I f 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 dégree
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. I f natural mother left no
lawful children or descendants, her natural children, acknowledged
by her, inherit to the exclusion o f her father and mother and other
ascendants or collaterals o f 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 o f the State. Donations
inter vivos or mortis causa cannot exceed two-thirds o f the property
o f the disposer if he leave at his decease a legitimate child, one-hair
if he leaves two children, and one-third if he leaves three or more.
An inheritance tax is levied upon all inheritances, legacies and dona­
tions, 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 or surviving
wife or husband and 5 per cent for collatéral 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 o f taxes prior to time o f such donation, bequest, or inherit­
ance. R. C. C. 915 amended to read “ In all cases when either hus­
band or wife shall die leaving no descendants, nor ascendants and
without having disposed by last will and testament o f his or her share
in the community property, such undisposed o f share shall be inherited
by the survivor in full ownership. ” (A ct 57 o f 1910.)
D ivorce. (See Separation from Bed and Board.)
D ow er. (See Married Women.)
E x ecu tion . 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-advértiséd. Advertise­
ments 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,
property must be re-advertised for fifteen days, and sold on a credit
for twelve months for whatever it will bring. There is no redemption
of property sold under execution or mortgage. No stay of execution
is given except on appeal, and execution may Issue at any time after
the delay for appealing suspensively has expired. Act 113 of 1906
authorizes sheriffs and constables to put purchaser of seized property
in possession.
E x em p tion s. 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 declara­
tion of homestead (Acts 1880, No. 114), and no exemption if wife
has separate property worth over $2,0,00. 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 hus­
band’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 Instru­
ments played on by family. (Acts 1876, No. 79.)
F raud vitiates all contracts. Action barred by one year limitation
to annual sale on account of fraud; For fraud on part o f purchasers
o f goods see Act 114 of 1912 amending Act 94 of 1896.
G a rn ish m en t. Wages earned out of this State and payable out
of this State, shall be exempt from attachment or garnishment in all
oases 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.)
H olidays. Sundays, January 1st, January 8th, February 22d,
Good Friday, June 3rd, to be known as Confederate Memorial Day,

1614

BANKING AND COMMERCIAL L A W S — LOUISIANA

July 4th, the first M onday o f September, to be known as Labor Day,
November 1st, Thanksgiving Day, as designated by the President o f
the United States, December 25th, and all general election days,
whether Presidential, Congressional, State, municipal or parochial, in
the localities where said elections are held; and in the Parishes o f
Orleans, St. Bernard, Jefferson, St. Charles, and St. John the Baptist,
Mardi Gras, and also in cities and towns when the population
shall exceed 10,000, and in the Parishes o f St. Bernard, Jefferson,
St. Charles, and St. John the Baptist every Saturday from twelve
o ’clock noon until ,twelve o ’clock midnight, toi be known as a half
holiday; and in all cities and towns whose population exceed 10,000,
whenever January 1st, January 8th, February 22d, June 3rd, July 4th,
November 1st, December 25th shall fall on a Sunday the succeeding
day shall be a legal holiday.
H u sb a n d a n d W ife . (See Married Women.)
In te re st. Legal rate is 5 per cent, but 3 per cent may be agreed
upon in writing. If higher than 8 per cent is charged, It is reducible
to 8 per cent. I f paid, it may be sued for and recovered within two
years.
J u d g m e n ts recorded in the office o f 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 tein years, when they must be renewed.
Liens or P riv ileg es. The following have special privileges, viz.:
1. Lessor’s privilege. 2. Privilege of the creditor on the thing
pledged. 3. Privilege of a depositor on the price of a thing deposited.
4 . Privilege, for expenses incurred in preserving thing. 5. Privilege
of the vendor of movable effects so long as they are in the 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
price or so much of It as is unpaid, whether it was sold on or without
a credit, 2. Architects, undertakers, bricklayers, painters, master
builders, 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 kinq for the con­
struction or repair of an edifice or other work, when such materials
have been used ;n 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 unpaid purchase price in preference to all others. Privi­
lege granted employes in saw mills, etc. (Act 145 of 1888, amended
b y A ct 52 o f 1910 and Act 23 o f 1912. W idow and children left in
necessitous circumstances are entitled to an amount in husband’s or
father’s succession sufficient to make $1,000 inclusive o f property
already possessed by them. This privilege primes all others except
vendor’s privelege, that for expenses o f selling property and con­
ventional mortgages representing money actually loaned for not less
than one year at not exceeding 6 per cent for interest, discount and
charges.
,
.
L im ita tio n s t o S uits. Prescription— Accounts stated and
acknowledged in writing are prescribed only b y ten years. [Act of
1888.] Personal actions one year; Action for torts of all kinds; for
injury to or rion-delivery of merchandise shipped on vessels; for fees
of justice, notary, or constable; for Innkeepers’ accounts: for accounts
of retailers of liquors; for wages of laborers or sailors; for freight; and
for tuition by month. Three years: Action for arrearages of rent
charges, or hire of movables or immovables or money lent; for salaries
o f overseers, clerks, or tuition by quarter or year: for fees of physicians,
apothecaries, attorneys, sheriffs, clerks, and recorders; on open
accounts of merchants, whether wholesale or retail, and others. Four
years; Actions by minors against their tutors, counting four years
from majority. Five years: Action on bills of exchange/or promis­
sory 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 righ£ to a usu­
fruct or servitude; all judgments, whether rendered within or without
tne State, but judgments may be revived before lapse of ten years,
and are then good for ten years from date of revival. Prescription
does not run against minors or- persons under interdiction. Husband
and wife can not prescribe against each other.
L im ite d P artn ersh ip . (See Partnership.)
M arried W o m e n . A ct 94 o f the Legislative Session o f 1916 pro­
vides that a married woman o f this State shall be competent to con­
tract and bind and obligate herself personally and with reference to
her separate and paraphernal property, and to appear in Court and
to sue and be sued to the same extent and in the same manner as
though she were a femme sole; provided that nothing herein con­
tained shall be deemed or construed to affect in any way the statutes
o f this State, establishing and regulating the matrimonial community
o f acquets and gains, and prescribing what shall be deemed com­
munity and what be deemed separate property o f the other spouse.
Revenues o f all separate property administered b y the husband, and
all property acquired by either husband or wife after marriage, except
by donation or inheritance constitute part o f community, unless
bought with the separate means o f either and as a separate acqui­
sition. Wife has no dower in her husband’s real estate. The wife
can have no claim upon the property o f the husband to the prej­
udice o f third parties, unless recorded. Where one o f the spouses
is agent for the other, he or she m ay ,be witness for the other in
a 'matter connected with that transaction, otherwise husband or wife
connot testify in favor or against the other even though both litigants
consent.
After dissolution o f marriage by death or divorce the sur­
vivor is entitled to one-half o f all property remaining after payment
o f debts, acquired during marriage, and in case o f death, the usufruct
of the other half, unless this half is disposed o f by will o f deceased
spouse. W ife cannot be a witness to husband’s will.
(See “ Liens
and Privileges.” )
• ,
.
. .
M o n o p o lie s o r T ru sts are regulated and rights are given against
them similar to those existing under Federal Law. The state author­
ities may take action and the individual may recover threefold damages
sustained. See House Bills Nos. 7 and , extra session 1915, approved
June 10. 1915.
„ £
M o rtg a g e s 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 o f Louisiana except
as stated under heading “ chattel mortgages.” There is no redemp­
tion o f property sold under mortgage. All tacit mortgages have
been abolished since 1870. In making shies or giving a mortgage
upon his'property, it is not necessary for the husband to obtain the
signature o f the wife. A mortgage resulting from recording a judgment
can not have that effect until after adjournment o f court. [Act 1888.]
Lessees obligated to erect buildings, etc., upon leased property, can
mortgage the lease, together with the improvements, etc. (Act 21
o f 1908.) Leases and contracts to explore for oil, gas and minerals
mav be mortgaged (Act 232 o f 1910).
N eg otia b le In s tr u m e n ts. “ Negotiable Instrument A ct
(No.
64 of 1904) changes in many respects the laws formerly applicable to
bills and notes. Under it, days of grace, which formerly were custom­
ary, are abolished. Instruments are payable to bearer if made payable
FRASER to the order of a fictitious or non-existing person, when such fact is

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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 indorse­
ment Is in blank. When there is a discrepancy between the words
and the figures of an instrument, the sum denoted by the Vords Is
the sum payable. Two or more persons signing instrument contain­
ing 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 dis­
honor 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 liable till he accepts same. Holder may require acceptance
to be written on bill, and li refused may treat the bill as dishonored
An acceptance written on paper other than a bill, and an uncondi­
tional written promise to accept a bill before it is drawn, binds the
aoceptor 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 tyho falls 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 busi­
ness day. When day of maturity falls on a Sunday or a holiday, the
instrument is payable on next succeeding business day. Instruments
falling due on Saturday are to be presented for payment on next
succeeding business day, except that instruments payable on demand
may, at option of holder, be presented for payment before 12 o ’clock
noon on Saturday when that entire day is not a holiday. If the day
or days next succeeding the protest for non-acceptance or non-pay­
ment shall ^be days of public rest or legal holidays or legal half holi­
days, then'the day next following shall be computed as the first day
after the protest. “ Service of citation shall not be waived, nor judg­
ment confessed, by- any document under private signature executed
prior to the maturity of the obligation sued on.” [Article 91, Con­
stitution 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.)
P artn ersh ip , L im ite d an d S pecial. Stipulations that one shall
participate in the profits and shall not contribute to losses Is void,
both as regards partners and third persons. Partnerships ar$ divided
as to their object into commercial and ordinary partnerships. Com­
mercial 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 or other vessels. Ordinary part­
nerships are all such as are not commercial. There is also a species
of partnership which may be incorporated with either of the other
kinds, called partnership in commendam. It Is formed by contract,
by which one person or partnership agrees to furnish another person
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
liable, to losses and expenses to the amount furnished and no more.
Partner In commendam cannot bind other partners by his act. Part­
nership in commendam must be made in writing: must express amount
furnished or agreed to be furnished; the proportion of profits which
partner is to receive and expenses and loses he is to bear; must state
whether It be received in goods or money, etc.: must be signed by
parties in presence of at least one witness, and recorded in full within
six days In mortgage office. If branch houses are established the con­
tract must be recorded in parish where branches are located. If
partner In commendam allow his name to be used, o f if he take any
part in the business of the partnership, he will be liable as a general
partner. Ordinary partners are not bound in solido for debts of
partnership, and no one of them can bind his partners unless they
have given him power to do so; each is bound for his share of the debt
in proportion to the number of partners. Commercial partners are
each liable for the entire debts of the partnership.
P ow ers o f A tto r n e y . May be written or oral. May be either
general for all affairs or special for one affair only. One conceived in
general terms confers only power of administration; to sell mortgage
or do any other act of ownership, the power must be express and
special:
P rob a te L aw . There is no special probate court. District courts
are vested with probate jurisdiction. Successions are opened upon
petition of interested persons in the parish where the deceased resided,
if he had a domicile or fixed place of residence in the state; ip’Jthf
parish where he left his landed property, if he had neither domicile
nor place of residence in the state; or in the parish in which it appears
from the Inventory tha* bis principal property was situated, if he
left property in several parishes: in the parish where he died, if he
had no certain domicile nor any fixed property. If presumptive heir
does not begin legal proceedings to settle succession within ten days
after death o f “ de cujus,” creditors may demand that he state whether
he accepts or rejects succession, or if no heirs appear, that a curator
ad hoc be appointed to settle the estate. The judge appoints an
administrator when deceased leaves no will. Administrators must
render annual accounts, and are allowed 2 1-2 per cent on the inven­
tory as commissions. Attorneys at law are appointed to represent
absent heirs. /, Properties acquired during marriage are presumed to
be community property, and surviving spouse is owner of one-nan.
When either husband or wife dies, leaving no ascendants or descend­
ants, and without having disposed by will of his or her share In the
community, the survivor holds such share in usufruct during his or
her natural life. (See Successions.)
P rotest. (See Negotiable Instruments.)
S ep aration fr o m B ed an d B oard . May be claimed reciprocally
for: 1. Adultery. 2. When spouse condemned to Infamous pun­
ishment. 3. Habitual intemperance, excesses, c r u e l treatment, or
.outrages, when such renders living together Insupportable. 4. p u d u o
defamation of one spouse by the other. 5. Abandonment, o.
Attempt of one spouse against life of other. 7. When one spouse
charged with infamous offense actually flees from Justice.
Judgment of Divorce. “ A vinculo matrimonii” c a n be obtained
immediately for first two causes. For other causes it is necessary
first to obtain judgment of separation “ a mensa et thoro.
Ait
judgment o f separation from bed and board, if there has been n
reconciliation, party in whose favor judgment is rendered can oDtarn
final divorce one year after finality o f judgment of separation. pa™y
against whom judgment is rendered must wait two years,
wne
marriage is celebrated outside of state parties cannot obtam divorce
state on grounds occurring outside of state.
T axes.
Taxes on real estate cannot be enforced u n t i l the expira­
tion o f the year for which they are levied and after legal notices to

BANKING AND COMMERCIAL L A W S — MAINE
and advertisement. Lands sold for taxes are reaeemablenHthin one year, by the owner, his agent, or heirs,, or any creditor,
nn navment of the purchase money, with 20 per cent Interest and
«■Tats and all subsequent taxes paid. Lands sold for taxes due prior
1880 are not redeemable. State taxes are 8 mills on the dollar,
Darish taxes not exceeding ten mills; city o f New Orleans tax
22 nulls on the dollar. Delinquent state taxes bear interest at 2 per
eent a month, city taxes, 10 per cent a year.
Wills. There are four different kinds of wills, v iz.: The olo■rranhic nuncupative by public act, nuncupative by private act, and
mvstlc (or sealed) will. The olographic will must be wholly written,
datfld and signed by the testator, and may be made within or with­
out the State. Nuncupative will by public act as written by a
imtfljv In presence of three witnesses, over the age of 16 years comnlete not insane, deaf, dumb or blind, residing In the place where
will Is executed, or five witnesses not residents of the place, at the
dictation of the testator. Nuncupative will by private act and mystic
wUls are subject to many formalities which may be best obtained by
reference to Civil Code Arts, 1581-1587 both Inclusive. All persons
of sound mind over sixteen years of age may dispose of their property
bv will Wills executed without the state given force and effect
provided same be in writing and subscribed by testator and follows
form of place where executed,/ or o f testator’s domicile. (See act 176
Of 1912.)

SYNOPSIS OF

THE LAW S OF MAINE
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised b y S y d n e y B. L a r b a b e e ,
Attorney at Law, Portland.
(See Card in Attorneys’ List.)
A ck n ow led g m en ts. (See Deeds.)
^
Actions. At law begun by writ, under common law practice, but
containing declaration. Suits in equity are begun by bill of comDlalnt. flled with clerk of court and subpoena issued by him, or may
be Inserted in writ of attachment and served by copy of bill and writ.
On motion non-resident plaintiffs required to give security for costs.
A d m inistration o f E state. (See Estates of Deceased Persons.)
Affidavits. Affidavits may be made before a notary public or
Justice of the peace. In some court matters authority of magistrate
must be proved by certificate of clerk of a court of record.
Aliens. Allens may hold and convey real estate and^ personal
property. Wills of aliens may b e proved and allowed In this State.
Widow of a citizen of United States who was an alien when she married
him has right of descent In his estate (but see Married Women).
A rbitration. Judge of probate court may authorize executors or
administrators to adjust by arbitration claims for or against tne
estates represented by them. Ail controversies which may be the
subject of personal action may be submittedt by the parties, to referees
for arbitration. Majority of referees may make report to Supreme
or Superior Courts.
Arrest. (See Executions.) In actions ex delicto, on mesne proc­
ess and execution, as o f course without affidavit or order; in actions
ex contractu, on mesne process, upon affidavit of the creditor, ms
agent, or attorney, that he has reason to believe and does believe
that the debtor is about to depart and reside beyond the limits of
the State and carry with him means of his own more than are neces­
sary for his immediate support, and that at least $10 Isidue on the
claim; on execution, only after supplementary proceedings and fraud
proven, but if contract judgment or action existing March 17, l°p7,
arrest on execution. Debtors arrested on mesne process or execution
may disclose, give up property not exempt from attachment and be
discharged from arrest, or may give bond and disclose according to its
terms. No arrest in actions ex contractu for less than $10, and none
of married women in civil actions.
A ssignm ents. Common law assignments for the benefit of
creditors may be made, and after four months will be good against
bankruptcy proceedings. Assignments of wages must be recorded
In town clerk’s office.
A ttach m en t. All property not exempt attachable on mesne proc­
ess as of course without affidavit; security for costs by indorser of
writ only if creditor is non-resident; lien by attachments in the order
in which they are made continue for thirty days after judgment
(extended where execution Is delayed, appeal from taxation of costs
is taken, or decision of law court certified down In vacation), within
which time levy may be made. Personal property may be appraised and sold on mesne process to avoid expense, depreciation or loss,
on request of either party and proceeds held by officer m lieu of tne
property; foreign attachment (garnishment), known as trustee process,
,attacnes property by or debt due from trustee unless: 1. Due on
negotiable paper. 2. Money collected on process by officer. 3.
In hands of public officer. 4. Due on contingency. 5. Trustee
liable to execution on same. 6. Twenty dollars wages, for personal
labor of the debtor, wife or minor child within one month, and $10
exempt in all cases. 7. In certain cases money due on life and
accident policies, and from fraternal beneficiary associations. (See
Creditors’ Bills.)
Banks. Savings bank business and discount banking permitted
ft only under special charter, and under state supervision. Trust com­
panies may be organized under general statutes on obtaining approval
of state bank examiner. General statutes relating to discount bank­
ing repealed by Laws 1903, c. 166. Foreign banking associations hav­
ing a branch here pay a tax of three-fourths of one per cent per annum
on the amount of business done In this State. Savings banks have
no capital, and do business only for the benefit of depositors, .under
statute regulations restricting investments, requiring reports under
oath and examinations by bank examiner. Must not pay over 2 \-c
per cent dividend semi-annually. Franchise tax Is five-eighths per
cent, regulated to favor home Investments. Use of the words bank,
“ trust company," and similar words In designating a business, for­
bidden, except by corporations organized as above or under laws Oi
United States. Corporations, if licensed by bank commissioner, may
receive savings deposits from their employees. Dealers in securities
must be registered with bank commissioner and are subject to certain
regulations.


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1615

C ollaterals. (See Mortgages.)
C o n d ition a l Sales, C o n sig n m en ts. No agreement that personal
property bargained and delivered to another shall remain the property
of the seller until paid for, is valid Unless in writing and signed by the
person to be bound. Such agreement, In whatever form it may be,
Is not valid except as between original parties, unless recorded in the
office of the clerk of the town In which the purchaser resides at the
time of the purchase. This does not apply to goods consigned for
sale*
C on v ey a n ces. (See Deeds.)
C orp ora tion s. Three or more persons may form a corporation to
carry on any lawful business excepting banking, insurance, construct­
ing and operating railroads, savings banks, trust companies, or cor-*
porations intended to derive profits from the loan or use of money,
and safe deposit companies, but corporations may be formed under
the general law for the construction and operation of railroads outside
the State of Maine. Corporations for other purposes, excepting for
municipal purposes, and where the objects of the corporation can not
be attained without special acts, are also formed under general laws.
Organization becomes void unless corporation begins business within
two years. Corporation may capitalize to an unlimited amount and
may increase or decrease the aihount of their capital or the par value
of the shares. No portion of capital is required to be paid In; stock
may be Issued for property or for services and In absence of fraud
the judgment of the directors as to the value of such property or
services is conclusive, the stock thereupon becoming fully p a id .
Only original subscribers and takers of stock are liable on same to
extent of unpaid par value and then only for debts contracted during
their ownership of stock, and action to enforce such liability must be
commenced within two years and can be maintained only by a judg­
ment creditor of the corporation who shall have begun proceedings
to obtain such judgment against the corporation during the owner­
ship of such stock or within one year after its transfer by such stock­
holder is recorded on the corporation books. Directors must be
stockholders or members of another corporation which is a stockholder.
If corporation fails for six months to elect directors, court may appoint.
Corporations must pay to the State upon organization, a fee as fol­
lows: Where the capital stock is $10,000 or less, $10; exceeding
$10,000 and up through $500,000, $50; above $500,000, $10 for every
$100,000 of capital. Other fees for organization are: attorneygeneral’s fee $5, register of deeds $5, secretary of state $5. The
annual franchise tax is as follows: $5 provided authorized capital
does not exceed $50,000; exceeding $50,000 and up through $200,000,
$10; exceeding $200,000 and up through $500,000, $50; exceeding
$500,000 and up through $1,000,000, $75; and the further sum of
$50 per $1,000,000 or any part thereof In excess of $1,000,000. Cor­
porations which have suspended business temporarily and have been
excused from filing returns of amount of capital stock, etc., are not
liable for franchise tax. Meetings of stockholders must be held within
the State. Clerk must be resident and keep stockholders' records in
the State. His records are open to Inspection by stockholders but
not by mere creditors. W ith the exception of banking corporations
no public reports -are required except one to the secretary of state
showing names and residences of officers and amount of capital stock.
Delivery of certificate of stock to bona fide purchaser or pledgee for
value together with written transfer of same or written power of
attorney to sell, assign, and transfer same, signed by owner of cer­
tificate. transfers title against all parties. Foreign corporations have
practically same rights as domestic, but are required to file copy of
charter with secretary of state, also a copy of the by-laws, and are
also required under severe penalties to file certificate showing among
other things the names of officers, amount of capital stock authorized,
amount Issued and amount paid in; also must file certificate showing
any change in above particulars. Such corporations must also appoint
a resident of Maine, having an office or a place of business in the
state, to be its attorney on whom process may be served in any legal^
proceeding. Corporations may dispose of their franchises on majority
vote of the stockholders; may sue and be sued, and have generally
the powers of individuals. Public service corporations are subject
to a Public Utilities Commission.
C ourts. Terms and Civil Jurisdiction. Supreme Judicial court:
Two or three terms a year in each county: unlimited jurisdiction except
as specified below; full jurisdiction in equity; appellate jurisdiction
en banc on questions of law, from trial terms and superior courts.
Superior
courts:
In Cumberland
County
except
equity,
real actions, extraordinary legal remedies and some others; exclusive
jurisdiction with exceptions to $500 and in divorce, concurrent juris­
diction above $500;" sits first Tuesday o f every month, except June,
July, and August. Kennebec County; exclusive jurisdiction, with
exceptions to $500; concurrent in habeas corpus and divorce; sits
second Tuesday o f January and first Tuesday o f April and September
at Augusta; second Tuesday o f June and November at Waterviiie.
Courts of probate: Usual'jurisdiction concurrent in equity^of probate
matters. Municipal courts and trial justices: Exclusive jurisdiction
of forcible entry and detainer and in other cases up to limited amount;
appeals to superior court where established, and elsewhere to supreme
judicial court.
C reditors’ B ills. Bill in equity may be maintained to reach
property of debtor which cannot be reached by process at law, and
is not exempt from attachment; also property conveyed In fraud of
creditors and property secreted so that it is not repleviable.
B ays o f G race. (See Negotiable Instruments.)
Deeds. Any owner of real estate having right of entry may con­
vey it by deed. No estate greater than tenancy-at-will can be created
except in writing. Deeds must be acknowledged by a grantor or
one of them or by attorney in fact, executing the same, before a justice
of the peace, notary public having a seal, or woman qualified to take
acknowledgments; outside the State, and in the United States, before
a iclerk of a court of record having a seal, notary public, or commis­
sioner of deeds for this State, and in a foreign country before,a notary
public, or a consul or minister of the United States, but if magistrate
acting outside of State has no official seal, his authority and the
genuineness of his signature must be authenticated by the clerk of
a court of record in county where he resides. Unacknowledged deeds
cannot be recorded. No special form of acknowledgment required.
Deeds must be recorded to be valid against parties without notice of
the conveyance. Deeds must be under seal, but witness Is not
reauired 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.
D ep osition s. 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. D epo­
sitions so taken may be used in all civil suits or causes, petitions for
partition of land, libels for divorce, prosecutions for the maintenance
of children, petitions for opinions in trial before courts of arbitrators,
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
it is within the discretion of the courts to admit or reject them.

1616

BANKING AND COMMERCIAL DAW S— MAINE

D e sce n t an d D istr ib u tio n ot P ro p e rty . (See Estates of De­
ceased Persons.)
D ow er. Abolished by laws of 1895, chap. 157, taking effect as
to persons not then married. May 1, 1895; as to others, Jan. 1, 1897.
Wire or husband may bar the right by Inheritance to one-third or
one-hall, 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 (or if incapacitated with no
guardian in this state., other being a non-résident) may be barred o f
inheritance upon application to supreme judicial court and decree
after hearing. (See Estates o f Deceased Persons.)
E states o f D eceased P ersons. Eighteen months after notice of
•appointment allowed creditors to present claims and suit must be
begun and service of process made within twenty months after such
notice o f appointment. Allowance to widow and minor children,
made by court from estate. Non-resident executor or administrator
must appoint attorney. Time o f demand or notice extended for absent
creditor if further assets, but priQr payments not disturbed thereby.
N o 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 o f debts descends according to the
following rules: 1. II 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
snares 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 pay­
ments 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 repre­
sentation. 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
bis 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 jchild is treated as
an heir It inherits from the lineal and collateral kindred of the parent,
and they from it. (See Wills.)
E x e cu tio n s issue after twenty-four hours from rendition of Judg­
ment, returnable in three months, renewable within ten years after.
No stay except by order of court for cause and one year against absent
defendants unless bond filed; levied on real estate by appraisal and
extent, also on real estate and interests in the same ana franchises
and personal property by sale; money and, by consent, circulating
motes applied directly. Beal estate sold on execution may be re­
deemed 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 lien, Special provisions for redemption of certain
other special classes of property, such as buildings on leased lands,
franchises, etc.
E x e m p tio n s fr o m A tta c h m e n t an d E x e cu tio n . 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, blbles, school books
in use; State statutes; library, $150; regular pew; cook stove and
Iron warming 'stoves; charcoal, twelve cords of wood, five tons an­
thracite coal, fifty bushels bituminous coal, $10 worth of lumber
wood, or bark; produce of farms till harvested; barrel of flour, thirty
bushels of com 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
each horse and mules, $20; horse sled or ox sled, $20; domestic fowl,
$50; two swine, one-cow and one heifer. If no oxen, horse or mule,
two cows; ten sheep, tneir wool, their lambs until one year old; hay
to keep them and cattle; plow, cart, truck or express wagon, harrow,
yoke with bowi, ring and staple, two chains, mowing machine; fish­
ing boat or two tons; debtor may elect if he nas more than is exem pt
Life and accident policies are exempt from creditors, except any
excess of $150 per year premium paid within two years, except suits
for pecessaries. (See Attachment.)
F oreig n J u d g m e n t. 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 o f parties
and subject matter.
F ra ud. 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 mer­
chandise In fraud of creditors.
F rauds a n d P erju ries.- No action shall be maintained upon any
contract to charge an executor or administrator upon any
special promise to answer damages out of his own estate; nor to
charge any person upon any special promise to answer for the debt,
default, or misdoings of another; nor to charge any person upon an
agreement made In consideration o f marriage nor to charge any per­
son upon any contract for the sale of lands, tenements, or heredita­
ments, 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 o f 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
after becoming twenty-one years of age, except the contract be for
necessaries or real estate where he has received title and obtained
benefit. No contract for sale, of goods, etc., of $30 or more in value
is valid unless purchaser accepts or receives a portion of the goods
or gives something to bind the bargain, or in part payment thefbof,
or some memorandum is made and signed by party charged or his
agent. Contracts whereby one becomes agent for sale of lands become
void in one year unless time for termination definitely stated.


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G a rn ish m en t. (See Attachment.)
___.
H u sban d an d W ife. Each may hold and deal wi«,
Individually, subject to' right of descent In real estate. (SeePEstates
of Deceased Persons.) Husband not liable for debts of wife coS
tracted before marriage, nor afterward In her own name, nor for w
torts. Equity CourtThas special jurisdiction of dispute betweei
husband and wife relating to property. After petition to and decree
by probate court either may convey real property as if sole, and othlr
is barred of all right by descent where deserted without just cause
or if actually living apart for just cause, and desertion or living
has contmued one year.
VU*B apart
* Dt'e r®st* Slx 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 afrer
maturity, unless so provided; nor after judgment In any case- n£
usury laws. On loans for less than $200, secured by mortgage or
pledge of personal property, the rate shall not exceed 3 per cent Der
month for first three-months, and 15 per cent per annum thereafter
Loans negotiated m this state by agent of non-resident borrower
^ v? intent to evade usury laws of state where borrower resides are
voiaame.
J u d g m e n ts. A t 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 lien 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.)

m A ctio n s, 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 au
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. Suit
begun when writ was made. Incapacity of plaintiff, death of either
party before or within thirty days after expiration of time, fraudu­
lent concealment of action, absence from State when cause accrues
or residence out of the State and absence afterwards, extends time
Actions barred where both pdrtles lived are barred here. New
promise must be In writing or part payment must be made, to extend
time. Against executors and administrators, twenty months after
filing of affidavit of notice given of appointment of executor or admin­
istrator, unless further, assets or claim not matured. Against heirs
or devisees, one year after claim accrued; remedy In equity, If not
prosecuted within time limited and if without culpable neglect.
L im ited P artn ership. May consist of one or more general part­
ners 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.
M arried W om en 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,
also Husband and Wife.)
M ortg a g es. 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 adver­
tising notice, or by possession obtained peaceably, or by consent, or
by suit. Redemption in one year from notice or possession; power
of sale mortgages not authorized by statute and not much used.
Supreme court may authorize a mortgage by a person In possession
of an estate subject to a contingent remainder, executory devise, or
power of appointment, and such mortgage Is binding on all parties.
Chattel mortgages unless and until possession taken and retained by
mortgagee to be good against third parties must be recorded in town
clerk’s office where mortgagor resides when mortgage is given; or, if
any o f mortgagees are non-residents, then in registry of deeds in
county where mortgagee resides, when mortgage is given. Mort­
gage on household furniture must state amount o f loan, interest
rate, and cost o f procuring loan. Agreements, whether in form of
note, lease, conditional sale, etc., or otherwise, that chattels bargained
and delivered shall remain property o f 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 o f State, by publication; redemption in sixty days. Col­
laterals pledged on notes, etc., or for the performance o f anything,
after failure to pay or perform b y the pledgor, may be sold by the
pledgee, he first giving written notice to the pledgor o f the proposed
sale, o r,if his residence is unknown, by publication o f 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 o f service
of same in the .clerk’s office o f city or town where the pledgee resides,
and after the expiration o f the sixty days from the time o f said record­
ing.
N egotia b le In s tru m en ts. 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 suits
usual demand and notice to charge Indorser; notarial protest proves
it; but one indorsing note at inception before payee does is a maker.
Waiver of demand and notice, acceptance of bill, draft, or order must
be in writing and signed. Recovery from indorser without suing
maker. Rate of damages on protested bills of $100 or more payable
in this country, 1 to 9 per cent according to place. Negotiable paper
presumed to be taken In payment of debt or liability for which it is
given, unless creditor would thus lose security he otherwise would
have had. Legal holidays are January 1: February 22; April 19;
May 30; July 4; first Monday in September; Thanksgiving; Christinas,
and Arbor Day. If note reads ‘T promise to pay” all signers are
Jointly and severally liable.
P artn ership. Personal property of” partnership, or Interest of
partner therein, exempt from attachment on mesne process, or seizure
on execution for ahy individual liability or such partner; but is statu-/
tory provision for reaching same after judgment. Partners in mercan­
tile enterprise must file sworn certificate with city or town clerk
where business to be carried on, showing names and residences of
partners, nature o f business and partnership name. (See Limited
Partnership.)
P ow ers o f A tto r n e y . Usual common law rules.
P rob ate Law . (See Estates of Deceased Persons.)
P rotest. (See Negotiable Instruments.)

BANKING AND COMMERCIAL L A W S — MARYLAND
Replevin« Goods or chattels wrongfully taken or detained may
h reDlevied by owner or party entitled to possession. Replevin bond
must be double the value of property replevied. If dismissed with­
out trial, suit may be brought on the Dond, in which suit title may be
ihown 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-pay­
ment 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
«ale- residents, two years with 10 per cent interest from day of sale
whole sum of tax and costs. Land on which taxes are unpaid,
sold on first Monday in February in year succeeding the year in which
tax was assessed; sale is ot smallest fractional part of interest to one
who will pay taxes, interest, and costs therefor. State tax assessed
by boatd of state assessors on gross receipts of railroads and express
companies, and telegraph and telephone lines, collected by suit.
Corporations, other than those especially provided for, pay a franchise
tax of $5.00 if authorized capital does not exceed $50,000.00; of
$10 00, if capital does not exceed $200,000.00; of $50.00, If capital
does not exceed $500,000.00; of $75.00, If capital does not exceed
$1 000,000.00; and the further sum of $50.00 for each $1,000,000.00,
or fraction thereof, in excess of $1,000 000.00. Foreign corporations
nay annual license fee of $10. Inheritance tax ranging from 1 to 7
ner 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. Real estate mortgages exempt. (See
Banks.)
Wages. Weekly payment required in most industries. (See
Assignments, Attachment.)
Warehouse R e ce ip ts. 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 prevail 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 o r 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.
(But «ee Husband and Wife.)
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 LAW S OF MARYLAND
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by T . H oward E mbebt , Attorney at Law, Baltimore.
(See Card in Attorneys’ List.) s
In general. Bagby’s Annotated Code (1911) and Supplemen­
tary Volume (1914) embrace the Public General Laws of Maryland,
including those o f the 1914 session. By statute, the Code o f 1911
has been made evidence; special reference to statutes in the follow­
ing is therefore unnecessary.
A cknow ledgm en ts of conveyances of any interest in real or lease­
hold property for above seven years, may be made within the State,
and in the county or city In which the land, or any part of it, lies,
before a notary public, justice 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 Balti­
more 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 bf the
officer or court' to be affixed to the certificate of acknowledgment
in all cases. If acknowledged without the United States, the acknowl­
edgment 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 o f Maryland. N o separate examin­
ation of a married woman is required. Defective acknowledgments
cured. (See Conveyances.) ....
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
auy time before verdict.
Equitable defenses are how allowed
to be made In a court of law, although there are still law courts and
equity courts having different and distinct jurisdiction. Speedy
judgment Acts are in force in Baltimore City and in many o f the
Counties. (See Suits.) :.
A dm inistration o f E states. The orphans’ court of the counties
and the orphans’ court of Baltimore city are the courts of probate.
bases where decedent left a will, letters are granted to executor
ana executrix named in the will. In granting letters of admlnistra,°S,’ where decedent died without leaving will, letters are granted:
&• lo widow or child or children; 2. Grandchild; 3. Father; 4.
fj"0fhers and sisters; 5. Mother; 6. Next of kin; 7. Largest creditor
applying for letters. In each class, males are preferred to females,
cona is required with two sureties, or one of certain local surety
companies where authorized by their charter to act as sole surety.
r “ en testator requests In will that executor be excused from giving
cona, court only requires nominal bond for amount sufficient to pay
estimated debts. Six months notice to creditors must be given by


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1617

publication before estate is distributed. Personal property must be
appraised, accounted for ana 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. B y Aot of 1896,
Ch. 246, above provisions were made applicable to “ estates
of persons absent and unheard of for above seven years." This act
has been held unconstitutional. Re-enacted with amendments.
(Acts 1908, Ch. 125.) This act constitutional by decision of Court
of Appeals in case of Savings Bank vs. Weeks 110 Md. 78.
A ffid av its.
(See Acknowledgments.) No particular form neces­
sary, but whoever can take an acknowledgment can take an affidavit
Affidavits always required in a mortgage as to the bona flaes of
mortgage consideration; and tbe payment of tax on annual interest
in certain counties. (See Mortgages.)
A liens. 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
bf tbe same or transmit the same to their heirs as fully and effectually
and in the same manner as if by birth they were citizens of this State.
A rb itra tion . Disputes between parties may be conducted by
any judge or Justice of tbe peace mutually agreed upon. Special
agreements for arbitration of such disputes to be valid. Parties may
be represented by an attorney, and award of arbitrator or arbitrators
to be a judgment, and court may give judgment and issue execution
on the award. Act 1904, Cb. 671, provides a means for the settlement
of disputes between employers and employees by mediation or volun­
tary arbitration.
A rrest. 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.
A tta ch m e n ts for debt (See Act 1890, Chap. 549), or for unliqui­
dated damages, either in contraot or tort, can be obtained in ail
cases when the defendant is a non-resident or has absconded, affidavit,
being first made by the plaintiff to the correctness of bis claim and
tbe fact that the defendant is a non-resident or has- absconded. They
may be also obtained ih 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 tbe 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 obliga­
tion 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 may be attached. There is a special provision for capital
stock o f a corporation. The certificate itself must be seized. 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 sball
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 inde­
pendent 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 Art. 9.) All papers in attachment pro­
ceedings can now be amended, as in any other actions at law. (Act
1898. Ch. 44.)
B anks. The Act o f 1910, as amended by the Acts o f 1912 and
1914, made important changes in the banking laws o f this State.
The law now provides for the appointment of a. Bank Commissioner
with broad powers for the examination o f all banking institutions
in this State other than National Banks and an annual report thereon
to the Governor. Whenever capital is reduced b y Impairment
commissioner may require Bank to make such deficiency good within
sixty days, and upon failure to do so may take possession o f property
and, business o f such institution and retain possession until affairs
are finally liquidated. This also applies where the business ,is con­
ducted in an unsafe or unauthorized manner. The requirements
for the incorporation o f such institutions are fully set forth in the
act. This act also provides for the incorporation and supervision
by the State o f saving institutions and trust companies.
C ollaterals. The conversion b y any banker, broker', merchant,
attorney, or agent of collaterals is made a misdemeanor. (See Code,
Art. 27, Seo. 93.)
C on tracts. 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 Ip writing. A
citizen can not make a contract with an alien 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 void; and they are capable of
ratification by Infants on arrival at age o f twenty-one. The contracts
of Infants for necessaries are binding upon them. The contract of
a lunatic is voidable and not void.
The statute provides that a
married woman may engage In 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 void.
C on v ey an ces. No estate or title to any property lying with­
in this State, for any period above seven years, shall pass or take
effect unless the deed conveying the same shall be executed, acknowl­
edged, and recorded.
(See Code, 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 neces­
sary, but every deed shall be construed to pass fee simple title unless
the contrary appear. A scroll with the word “ seal" therein by way
of a seal, IS sufficient. A deed must be recorded within six months
frotn 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 attor­
ney to acknowledge the deed as and for the corporate act of said
corporation or have it acknowledged by the President or Vice-Presi­
dent without such appointment. Vendors’ lien may be released In

1618

BANKING AND COMMERCIAL L A W S — MARYLAND

original deed or upon records where recorded. (Code Art. 66, Sec. 31).
Conveyances deiectively executed made valid b y Acts 1908, Ch. 105
and Acts 1914, ( h. 259 and Ch. 421.
C orp ora tion s are organized under the authority o f 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. Ail 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, and secure them by mortgage of all property Including
franchises. Foreign corporations must file list of resident share­
holders, and amount held. The corporation’s 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 o f 1 per cent on the excess to $5,000,000, eto. Domes­
tic corporations may issue all kinds of preferred and common stock,
and exchange same for stock or good will. Valuation In absence
o f fraud is conclusive. As to Stock certificates, see “ Uniform Laws.”
Law amended by Chapter 596, Acts o f 1916.
Any corporation chartered by this state, which for a period o f ten
days next preceding is without one resident agent, whose name and
post office address is given in charter or filed witn State Tax Commis­
sioner, may be deemed a defendant in an attachment in the same
manner as non-residence, unless said corporation shall have been
incorporated under the laws o f this state prior to June, 1916, and
have at least one Director, who is a citizen o f this state, actually resid­
ing therein.
C ou rts. Terms and Jurisdiction. The circuit courts In the
counties have juricdiction at common law In cases involving more
than $50, fn d 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 jurisdic­
tion 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.
D e p o sitio n s. 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 parties and interrogatories and cross-interroga­
tories anneied to the commission. Testimony of non-resident
witnesses can also be taken upon proper notice, as provided by Sec.
17 of Art. 35 of the Code.
D e sce n t an d D istr ib u tio n o f P ro p e rty .
As to descent, see
Code 1904, Art. 46, and as to distribution, Code, 1904, Art. 93.
An attempt to abrogate the Rule in Shelley’s case has been made by
Ch. 144, Acts 1912.
D o w e r. 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 inheri­
tance, 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 by the will, within six months after the
grant o f administration on the estate o f the deceased husband or wife,
the dower right and the share o f personal property remain undisturbed.
(See Married Women.)
E x e cu tio n s 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 §ix months. Copy of docket entries of judgment
when recorded in another county makes the judgment a lien there.
(Act 1890, Ch. 314.)
E x e m p tio n s. 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.
F o re ig n C orp ora tion s. (See Corporations.)
F o re ig n J u d g m e n ts. 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.
F ra u d . 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.
Giving checks or drafts without provision for acceptance is prima
facie evidence o f intent to defraud, and is punishable as a crime
unless such provision is made within ten days. Every person buying
merchandise in bulk shall demand and receive from the vendor a
written statement under oath containing the names' and addresses
df all creditors with amount o f indebtedness at least five days before
the sale is consummated. The vendee at least five days before
consummating such sale shall notify all o f said creditors either per­
sonally or by registered mail o f such proposed purchase. A sale
or transfer o f goods in bulk without such notice shall as to all sub­
sisting creditors o f the vendors be void.


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Federal Reserve Bank of St. Louis

Chapter 370, Acts o f 1916, adds additional section to Article 27 r>f
Bagby’s Code and provides that if any person shall make, or cause tn
be made, either directly or indirectly, througn any agency, whatsoever
any false statement as to his financial condition for the puroose of
procuring the delivery o f personal property, etc., shall be guiltv of a
misdemeanor and be fined not more than $1,000, or imprisonment fni
one year.
,
Chapter 371, o f the Acts o f 1916 adds new section 831,o f Baebv’s
Code and provides that any vendor o f stock o f goods who shall know
ingly and willlingly make or deliver any statement of which anv
material portion is false, shall be guilty o f a misdemeanor and unon
conviction shall be fined $1,000, or. imprisonment for one year.
G a rn ish m en ts. (See Attachments.)
H u sban d an d W ife. (See Dower, Divorce, and Married W omen)
In this State the husband is not liable for wife’ s ante-nuptial debt*
or contracts. Husband is liable for necessaries of wife. Acts 1898
Ch. 457, gives husband same interest in wife’ s estate as wife has Id
husband’s estate. Married women are expressly authorized by the
Acts of 1900. Ch. 633, to become partners and to contract with hus­
band. Either can relinquish Interest In other’s real estate by joint
•r separate deed, or by agent or attorney properly constituted
The wife’s property is protected by the Constitution from the debts
o f the husband.
Interest., The legal rate of Interest is 6 per cent per annum
Judgments bear Interest from their date. A person proved guilty
of usury forfeits the excess over the real sum or value of the goods
and chattels lent, and legal Interest thereon. Since 1876, where tie
whole debt, including the Usury, is paid, the usurious interest can
not be recovered back. Since September 1st, 1914, judgments
bear interest from the date o f the verdict.
J u d g m e n ts are liens for twelve years from date of rendition on
any interest of the defendant In real or leasehold property within
the county where rendered. They can be transferred from one county
to another by sending a copy of the docket entries to the clerk for
record. The lien commences from the date of the entry of the docket
entries by the clerk. Judgments are not liens on mortgages. Judg­
ments are not liens on personal property until execution has Issued
and the writ is in the hands of the sheriff. (See Act 1890, Chap.
558, as to examination of judgment debtors.) (See Suits.)
L iens. (See Judgments.) Mechanics’ 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 secure the lien and lay foundation for enforcing it, the material
man must within six months after the last work has been furnished,
file a claim in the superior court for Baltimore City, or in the circuit
court for the county. The Hens are enforced by scire facias or by
bill In eauity.
Section 53 B, Bagby’s Code, amended b y Chapter 355, Acts of 1916,
entitled “ Additional Contracts.” Every note, sale, or contract for
sale o f goods and chattels wherein the title thereto, or lien thereon is
reserved until the same be paid in whole or in part, shall be void as
to third persons without notice until such note, sale, or contract be
in writing signed by the vendee and be recorded in the Clerk’s office
o f Baltimore City, or the counties, and such recording shall be suffi­
cient to give actual, or constructive notice to third parties.
L im ita tio n s o f S uits. Accounts and notes are barred after
three years, sealed instruments after twelve years; judgments twelve
years except against foreign corporations (no limitations.) Act
1914 Ch. 846. A verbal promise or acknowledgment will revive a
debt barred b y the statute.
M arried W om en . Act of 1898, Chap. 457, Code Art. 45, repeals
and re-enacts the entire law in this State. Married women may
hold and dispose o f . their property lawfully as if unmarried, but
husband must join in conveyances o f real estate to release his in­
terest. Married women may engage in business, contract, sue, and
be sued upon contracts and for torts, as if unmarried. Married woman
is alone liable for ante-nuptial debts and contracts. Husband is
still liable for necessaries. Widow is entitled to dower in real estate,
and one-third o f the personal estate if there are children, and if no
children, one-half of the personal estate; husband has same rights
in wife’s property as wife has in husband's property. Where the
wife is adjudged a lunatic upon inquisition, and the finding remains
in force, husband may convey after acquired property by separate
deed, as if unmarried.
M ortg a g es are executed, acknowledged, and recorded same a*
deeds, and are not valid against creditors unless recorded within six
months. There must be an affidavit made by the mortgagee or hi*
agent at any time before recording, that the consideration is true and
bona fide, and, in the four Counties mentioned below, that the mort­
gagee will not require the mortgagor, or any other person for him
to pay the tax levied upon the mortgage interest, and upon the assign­
ment o f any mortgage except for the purpose o f foreclosure, a like
affidavit must be made by the assignee. I f made by agent, he must,
in addition, make oath that he is the agent of the mortgagee. A
like affidavit is required to chattel mortgages, and absolute bias
of sale, both o f which must be recorded within twenty days, ine
lien o f a mortgage may, by ceasing to pay interest or any install­
ment o f the principal for twenty years, be barred. They may be
foreclosed at any time after the debt becomes due and before trie
lien Is barred. Mortgagees are required to pay a tax or 8 per cent
on the, interest covenanted to be paid in the mortgage, in Somerset,
Montgomery, Frederick, and Dorchester counties. No tax in Balti­
more City and other counties. (Code Art. 81, Ch. 187.)
N otes a n d B ills o f E x ch a n g e .
Negotiable instruments are de­
fined by Ch. 119 of the Laws of 1898, which repeals all laws incon­
sistent with the provisions of this act. Section 20 provides as follows.
“ An instrument to be negotiable must conform to the following
requirements: 1. It must be in writing and signed by the maker or
drawer. 2. It must contain an unconditional promise or order to
pay a sum certain in money. 3. Must be payable on demand, or at a
fixed or determinable future time. 4. Must be payable to order or
to bearer; and 5, where the instrument is addressed to a drawee,
he must be named or otherwise indicated therein with reasonaDie
certainty.” Its negotiability is not affected by a seal, or by a provision
which authorizes the sale of collateral securities in case the Instrument
be not paid at maturity, or authorizes a confession of J'WKp1®“ * ~
the instrument be not paid at maturity; or waives the benefit oi 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 ueu
of payment of money. It is not necessary that paper should d
made payable at a bank or any fixed place. To charge Indorser,
notice of non-payment must at once be given to bim. 'ihe time
o f maturity is regulated by Art. 13, as follows:
Section 104. 1J
of Maturity. Every negotiable Instrument Is payable at the tun
fixed therein without grace. When the day of maturity fmis up
Sunday, or a holiday, the instrument is payable on the next succeeding
business day. Instruments falling due on Saturday are to be presentee
for payment on the next succeeding business day, except that insw*

BANKING AND COMMERCIAL L A W S — MASSACHUSETTS
««»nts payable on demand may, at the option ot the holder, be preSntpd tor payment betore 12 o ’clock noon, on Saturday, when that
dayP Is not a holiday.” Legal holidays are: Christmas,
t?pwY ear's Day. February 22, Good Friday. July 4. M ay 30, 1st
Monday in September. 12th day o f September, and the 12th day of
/v-tnher all days of general and congressional elections throughout
the State and any day o f public thanksgiving or humiliation and
nraver proclaimed by the governor or legislature, and all Saturdays
after 12 o ’clock noon are legal half holidays. M onday is treated
«¿Sunday when immediately preceded by one o f the holidays aforec«iH Bv act 1898, Ch. 198, it shall be lawful for banks and bankers
in the city of Baltimore to close their doors for business at 12 o clock
noon on each and every Saturday in the year, and every Saturday
in the vear, after 12 o ’clock noon, shall be a legal half-holiday, so
tar as regards the presenting for payment or acceptance, and the
Protesting and giving notice o f the dishonor, o f bills o f exchange
ind other negotiable paper, and for these purposes shall be considered
as the first day o f the week, or Sunday, and all negotiable paper
¿hall he deemed to be presentable on the secular day next succeeding.
Bagby’s Code amended by Chapter 355, Acts o f 1916. Notes
wherein reservation o f title is embodied must be recorded m the
Clerk’s office o f Baltimore City, or in the counties.
Power o f A tto r n e y . Every power of attorney authorizing an
agent or attorney to sell and convey any real estate, shall be attested
and acknowledged in the same manner as a deed, and recorded prior
to or with the deed executed in pursuance of such power of attorney.
A corporation shall have power to appoint an attorney for the same
purpose, by its corporate seal. Such power of attorney shall be
deemed to be revoked when the Instrument containing the revocation
ts recorded in the office in which the deed should properly be recorded.
Probate L aw . (See Administration of Estates and Wills.)
Protest is usually made bv notarv public. Notary must keep
register of protests. A protest of notary public is prtma facie evidence
of non-acceptance or non-payment, and of the presentment of said
aotevfor payment, or of said bill for acceptance or payment, at the
time and in the-manner stated in the protest, and the protest shall
also be prima facie evidence that such notice has been sent or delivered
in the manner therein stated. (See Notes and Bills ot Exchange,)
Replevin is a remedy to recover specific goods and chattels to
whose possession the plaintifl is entitled. Also the proper remedy
to recover possession of goods distrained unlawfully. Bond must be
given t o .the State of Maryland, and any party having an interest
in the property, may, upon breach of any covenant in bond, maintain
an action in the name of the State for his or her use.
Sales & N otices. Act 1910. Ch. 346, provides a Uniform Sales Act.
Taxes. The county commissioners of the several counties of the
State, and the mayor and city council of Baltimore City are directed
to levy a tax annually upon real and personal property situated
within the State, and no person who is not assessed to the sum of
¿100 shall be required to pay,an y tax. Beginning with 1915, the
State tax is thirty-two and one-third cents, beside the County tax.
The County tax on Banks located and in business anywhere in Mary­
land is uniformly 1 per cent. The property o f religious, charitable,
benevolent, and educational institutions, and cemetery companies is
exempt from taxation. On timely application exemption may be
had for manufacturer’s tools and machinery in actual use from M unic­
ipal taxation in Baltimore City and in some o f the Counties, and
beginning with 1915, from State taxation. Collectors may sell
property to compel payment o f overdue taxes, upon giving due notice
of, sale, and complying with other requisites o f statute, and any person
interested in property may redeem .within twelve calendar months
from date, and in default o f redemption, title to property vests in
purchaser. Taxes are considered in arrears on first day o f January
next succeeding the date o f their levy, and bear interest from that date.
“ U niform S tate L aw s” intended for adoption by all the States
and adopted by Maryland: (1) Negotiable Instruments, (2) Bills of
Lading, (3) Sales, (4) Warehouse Receipts, (5) Stock Transfer, (6)
Probate o f Foreign Wills.
.
.
,
Certificates o f capital stock, bills o f lading, and warehouse receipts, roughly speaking, (1) are negotiable, (2) represent the property
certified to. .
Wills of land or personal property, and any codicil thereto, must
be in writing, signed by the testator, or some one else for him, in
his presence, at his request, and witnessed by two or more credible
witnesses, as and for last will and testament of the testator; in the
presence of all the witnesses thereto. Nuncupative wills invalid
except in case of disposition of personal property by soldiers and
marines in actual service. Every will or other testamentary instru­
ment executed without this State in the mode prescribed by law,
either of the place where executed or o f the testator’s domicile, or,
according to the forms required by the law o f this State shall be
deemed to be legally executed, and shall be o f the same force and
effect as if executed in the mode prescribed by the law o f this State,
provided, said last will and testament is in writing and subscribed
by the testator; and if the testator was originally domiciled in M ary­
land, although at the time o f making the will or at the time o f his
death he may be domiciled elsewhere, the said last will or testamen­
tary instrument so executed shall be admitted to probate in any
orphan’s court o f this State; and when so admitted shall be govern«!
by and construed and interpreted according to the law o f Maryland,
without regard to the lex domicilii, unless the testator shall expressly
declare a contrary intention in said will or testamentary instrument.
Code Art. 93, Ch. 334. N o will, testament: codicil, or other ttstamentary paper shall be subject to caveat or other objection to. its
validity after the expiration o f three years from its probate. (Acts
1894, Ch.*405.) When a person is unheard o f for above seven years,
and supposed to be dead, the orphans’ court, under the provisions
of Act of 1908, Ch. 125, may grant letters testamentary or o f admin­
istration as the case may be.
W orkm en’s C o m p e n sa tio n . By the Act o f 1914, Chapter 800,
provision is made for the insurance by employers o f their employees
engaged in extra-hazardous occupations, to provide for compensation
for injuries and death. This Act is intended to supersede within
its scope recovery for injuries through negligence as a tort, and to
do away with such defenses as “ assumed risk,” “ fellow servant
and, to some extent, “ contributory negligence.” The extra-hazard­
ous employments are enumerated at length, and the extent o f com­
pensation set out. Employers and employees, may by filing agree­
ment, classify their occupation as extra-hazardous, although not so
enumerated in this Act. Article 101, Amended by Chapter 86, Acts
of 1916, so as to extend benefits to alien non-resident defendants upon
certain terms.


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Federal Reserve Bank of St. Louis

1619

SYNOPSIS OF

THE LAW S OF MASSACHUSETTS
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised July i , 1917, b y L l o y d M a k e p e a c e , Attorney at Law.
Boston. Mass. (See Card in Attorneys’ List.)
The next Legislature convenes January 2, 1918.
A c k n o w le d g m e n ts an d D eeds. Acknowledgments may be made
before any justice of the peace, notary public or special commissioner
in the State: when the acknowledgement is made by any person with­
out this State and within any other state, territory or distriot of the
United States, it may be made before any officer of such state, terri­
tory or district authorized by the laws thereof to take the proof and
acknowledgment of deeds, and when so taken there shall be attached
to the certificate of acknowledgment a certificate of the secretary of
the state or territory in which such officer resides, under the seal of the
state or territory, or a certificate of the clerk of a court of record of such
state, territory or district. In the county in which such officer resides,
under seal of said court, certifying as to the authority “6f such officer
to take acknowledgments and as to the genuineness of his signature.
In deeds where there is more than one grantor, the acknowledgment
of one of them is sufficient.
No separate examination or acknowledgment of wife Joining in a
release of dower necessary. Conveyances of land are made by deed
under seal executed by the grantor or attorney having authority
therefor. A conveyance in fee, for life or for a term exceeding seven
years, shall not be valid except as against the grantor and persons
having actual notice of It, unless recorded In the county in which the
real estate is situated. Deeds must be under seal, a scroll being
insufficient. No subscribing witness is necessary. Release of dower,
homestead and other interests must be explicitly stated in deed, wife’ s
joining in deed merely, being insufficient.
•
A ctio n s. There are three classes of actions: contract, tort, and
replevin. Actions at law a re begun by writs issued in blank form by the
clerks of the several courts. No declaration need be Inserted in the
writ, except in cases of arrest on mesne process or of an attachment
of a vessel. Suits in equity are begun by filing a bill upon which a
subpoena is issued by the clerk of the court. Actions begun by
trustee process must be brought in the county in which the trustee
or one of them resides or has his usual place of business.
A d m in is tra tion o f E states. The judge of probate for the county
where deceased last resided may appoint any person of sufficient
capacity as executor or administrator. Executors or administrators
are required to give a bond of about double the value of the personal
estate. An executor will be exempt from giving sureties if testator
so directs. An administrator will be exempt if all persons Interested
in this State except creditors consent and all creditors are notified by
publication. In case a non-resident is appointed-executor or admin­
istrator, he must appoint a resident agent. There are public admin­
istrators in each county to whom administration is granted upon
estates o f persons who die Intestate leaving property, and not having
any husband, widow, or heir in this State. Ancillary administration
may be granted upon the estate of a non-resident who dies leaving
property in this State. Every administrator and executor shall file
an inventory within three months, and publish notice of his appoint­
ment, Notice of a debt and demand for its payment should be given
to an executor or administrator within six months after his appoint­
ment and the debt should be paid after six months and within one
year o f the appointment. N o suit can be brought by a , creditor
against an executor or administrator within six months after his
giving bond, excépt on a claim not affected by the insolvency o f the
estate. No suit can be brought against an executor or administrator
who has published notice o f bjs appointment, after one year from
time o f his giving bond, unless he has received new assets after the
expiration of the one year, or unless further time is allowed by court.
A creditor whose claim does not accrue within the one year may
cause assets to be reserved to answer to his claim. When the estate
is insufficient to pay all claims, the executor or administrator shall
represent the estate insolvent, and commissioner will be appointed
to receive proof o f claims. Claims for funeral expenses, last sickness,
and charges o f administration, are not affected by tne insolvency of
the estate. Executors and administrators shall render an account
at least once a year.
A lien s. Resident or non-resident aliens may sue and be sued and
may hold and convey real estate.
Arrest. In an action of contract, the defendant unless she is a
woman, may be arrested on mesne process provided the plaintiff, and
except in actions on negotiable instruments, the original party to the
contract or his executors or administrators makes affidavit and
satisfactorily proves to the court to which, the writ is returnable that he
expects to recover a sum amounting to $20; that he believes that de­
fendant has property which he does not intend to apply to payment of
plaintiff’s debt; that he believes that defendant intends to leave the
State. Actions o f tort, agaihst women as wèll as men, except for
slander or libel, may be begun by arrest o f the defendant, on the
plaintiff or some one in his behalf making certain affidavits. A de­
fendant arrested on mesne process may give bail or he may apply to
take an oath that he does not intend to leave the State, or the oath
for relief of poor debtors; on taking such oath he is released from
arrest. N o arrest can be made if the property o f defendant is attached
upon the same writ. On an execution, except for costs, or for ali- 1
mony,' or one issued in an action of tort, or Where debtor is about to
leave the State, he can not be arrested until he has first been cited
before a magistrate for examination, and it appearing that he has
property and refuses to assign it, the magistrate may order his arrest.
When arrested on execution the debtor may apply to take the oath
for relief o f poor debtors.
A ssig n m en ts for benefit of creditors. A voluntary assignment to
trustees for benefit of creditors can not be avoided by creditors who
assent thereto, except by proceedings in bankruptcy begun within
four months or by proof o f fraud. If there is. property in excess of
the claims o f creditors who have assented, the excess in hands o f the
trustee can be reached by trustee process. Acts done in good faith
by the trustee under an assignment are valid, though the assignment
be afterward set aside, if the assignment is assented to in writing by
a majority in number and value of the creditors not secured. The
trustee shall on acceptance o f the trust gjve notice in writing to all
known creditors o f the assignment and acceptance thereof and shall
deposit with the clerk of the city or town wherein the debtor has his
principal place of business a copy o f the assignment. The above
would probably not apply under the provisions o f the National
Bankruptcy Act.
In solv en cy . There is an insolvent law, but it is superseded by the
National Bankruptcy A ct o f 1898.

1620

B A N K IN G A N D

C O M M E R C IA L L A W S — M A S S A C H U S E T T S

A tta c h m e n t. All real estate, goods, and chattels' not exempt,
may be taken In attachment on the original writ and held as security
tor judgment, except that lands and tenements can not be attached
In suits Involving less than $20. Attachments may be made In suits
by or against non-residents as well as In suits by or against residents.
No bond is required to make an attachment. Shares of stock In
corporations organized under laws of this State, or of United States,
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 furnish­
ing bond with sureties to pay judgment obtained or value of property
attached determined by appraisement. Upon affidavit made before
the Court to which the writ is returnable by the original party to
the contract except in actions on negotiable instruments that he
has reason to believe that the debtor intends to leave the State and
has property not exempt from attachment which he does not intend
to apply to the payment o f 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 touchiñg his prop­
erty,. 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 to take the poor debtor’s oath and be examined as to his prop­
erty after notice to creditor. Proceedings in insolvency dissolve
attachments made within four months o f first publication. An
attachment is dissolved b y death o f the defendant if administration
is granted upon his estate upon application made within one year
after his death.
B an k s. In this State, safe deposit, loan and trust companies are
governed by the provisions contained In chapter 116, revised laws, and
amendments thereto. Under the law twenty or more persons and
their successors may form a corporation for the purpose o f 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,
and except also that in towns whose population is not more than
10,000, the capital stock may be not less than $50,000, divided into
shares o f the par value o f $100.00 each. N o business shall be trans­
acted until the whole amount o f its capital stock is actually paid in.
• Before commencing business the president and directors shall make a
certificate specifying the corporate name, which shall be different
from any previously organized in the commonwealth; the location
o f said bank; the amount and number o f shares o f its capital stock;
name and residence and, number o f shares o f each stockholder, and
the time'when it is to go into operation; a copy o f which certificate
shall be filed with the secretary o f the commonwealth. N o part
o f the capital stock can be sold or transferred until the whole amount
thereof is paid up. N o person can hold more than half the capital
stock, exclusive o f 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 o f its authorized capital,
when provision is made therefor by law. Said commonwealth shall
be entitled to its proportionate share o f profits and dividends. Upon
the vote o f three-fourths o f 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 less than $20,000, with two or more
sureties, before entering upon his duties. The debts o f a bank shall
at no time exceed twice the amount o f capital stock paid in exclusive
o f deposits not bearing interest, nor shall there be due the bank more
than double the amount o f capital stock paid in. Every bank is
require«! to keep a reserve in lawful money o f the United States, equal
to 15 per cent o f its liability for circulation and deposits in City o f
Boston. Trust companies doing business in the City o f Boston 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 o f 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, all such banks, and
examine all their affairs, and make such inquiries as may be necessary
to ascertain their condition, and make a report of such Investigation
to the general court.
C h a ttel M ortgages.- Chattel mortgages must be recorded In the
records of the city or town where the mortgagor resides when the
mortgage is made, and In the city In which he then transacts business;
every mortgage must be recorded within fifteen days of the daté;
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.
C orp oration s.
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 busi­
ness within the commonwealth Jfor profit, except the following;
Banks, savings -banks, co-operative banks, trust companies, surety
or indemnity companies, safe deposit companies, insurance com­
panies, railroad or street railway companies, telegraph or telephone
companies, gas or electric light, heat or power companies,, canal,
aqueduct Or water companies, cemetery, or crematory companies, or
any corporations which now have or may hereafter have the right to
take or condemn land, o f to exercise franchises in public ways, pro­
vided that corporations formed for purpose o f dealing in real estate
shall state the term o f the duration o f the corporation, such term not
to exceed fifty years.
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, restric­
tions, and qualifications as may be fixed by the agreement of associa­
tion. Upon due organization of the associates and filing a copy of
the agreement of association with the commissioner o f 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 stock­
holders 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, con­
vey 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


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statement under oath; by an auditor. It is also reauired tn m ot.
“ HnnU/ 1 r?Ìurn to tbe tax commissioner. Every corporation orean
lzed under the general law is taxable locally upon all real e s t a t e ^
machinery owned by it in the commonwealth, and is subject to f
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 corporati^
situated in another state or country and subject to taxation there
Every foreign corporation which has a usual place of buslnesi
here, or is engaged here permanently or temporarily in the construe?
tion, erection, alteration or repair of a building, bridge, railroad mil
way or stnicture of any kind, shall before doing business here appotot
the commissioner of corporations, its attorney for the service ofnroeess, such authority to continue as long as any liabilitv remains mit
standing against it in this commonwealth: and shall file with°the
commissioner of corporations a copy o f its charter, articles or certifl
cate o f incorporation, by-laws, and a certificate setting forth its
name, location, names and addresses o f its officers, date of its annua)
meeting, amount o f its capital stock authorized and issued, the number and. par value of its snares, the amount paid thereon, and detail«
o f any payment thereof not made in money. They are reauired
to file annual statements with the commissioner o f corporations
showing then- condition. Officers of a foreign corporation are liable
for all debts and contracts made while they are such officers if anv
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 o f not more than $500. A foreign cor­
poration is subject to taxation locally on its real estate, machinerv
and ip9rc,bandise in this commonwealth, and to an excise rax of
one-fiftieth (1-50) o f one per cent o f the par value o f its authorized
capital, but the excise tax shall not exceed $2,000 a year.
C ourts. Terms and Jurisdiction. Trial justices may severally
hold courts within the1counties 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 have original
jurisdiction, exclusive o f the Superior Court, o f actions of contract, tort
or replevin, in which the debt or damages demanded or the value of
the property alleged to be detained does not exceed $100 and have
original and concurrent jurisdiction with the Superior Court of actions
of contract, tort or replevin in which the debt or damages demanded
or the value o f the property alleged to be detained is more than $100
and does not exceed $1,000. The supreme judicial court has original
jurisdiction in all equity matters and may on appeal hear all matters
determined b y the probate court, and determine questions arising under
wills. Superior court has jurisdiction where the amount claimed ex­
ceeds $20. Municipal court o f the city of Boston has jurisdiction con­
currently 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.
L and C ou rt has exclusive original Jurisdiction for registering title*
to real estate under the Torrens system, and of writs of entry and
petitions to clear titles to real estate.
D ep osition s. Thè deposition o f a witness without the State may
be taken under a commission issued to a person qualified j to take
depositions as stated in commission in any other state or country by
the éourt in which the case is pending, or it may be taken by a com­
missioner appointed by the governor for that purpose. Every
deposition taken under a commission must be upon written inter­
rogatories, to be exhibited to the adverse party, and cross-inter­
rogatories may be filed by him but neither party to the action 'shall
attend at the taking o f the deposition or be represented by attorney.
Oral examination is allowed if the court so orders.
D ow er an d C u rtesy . 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.
E x ecu tion s can not Issue until twenty-four hours after judgment
rendered, and an original execution must be issued within one year
after plaintiff is entitled to sue out the same. Original executions in
ail courts are returnable within sixty days alias executions five years.
There is no stay of execution except by special order of court. Execu­
tions may be served by levy upon real or personal estate of the debtor
or by arrest when arrest is allowed. Certain personal property and.
real estate are exempt from levy.
E x em p tion s. 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 fisbihg 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 tobe used or wrought therein, not exceeding $100 in value. Shares in
co-operative associations not exceeding $20 in value, funds of railroad
relief societies assessment insurance benefits, uniforms, arms, andequipments of militia officers.
F rauds, S ta tu te o f. No contract for sale of goods for $500 ormore shall be good unless the purchaser accepts and receives part, or
gives something in part payment or unless a memorandum In writing4
is made of the bargain and signed by party to be charged. No action,
can be brought In the following qases 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 chargea person for the debt of another. 3. On a contract for the sale o f
real estate or interest therein. 4. On an agreement not to be per­
formed within one year.
H olid ays. January 1st., New Years Day, February 22nd,.
Washington’s Birthday. April 19th, Patriot’s Day. M ay 30th,
Decoration Day. July 4th, Independence Day. First M onday'
in September, Labor Day. October 12th, Columbus Day. Novem­
ber, Thanksgiving Day. December 25th, Christmas Day. Revised
Laws provide that when the day or the last day for the performance o f any act falls on Sunday or on a legal holiday, the act may be per­
formed on the next succeeding secular or business day, unless it is authorized or required to be performed on Sunday or on a legal holi­
day. Also when any of said dates fall on Sunday, the following day
shall be observed as the holiday. Banks close at 12 o ’clock noon
on Saturdays, „
In te re st. 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 in an amount not to exceed 3 per cent per month. A supervisor of loans has charge of the business of making..

B A N K IN G A N D

CO M M ERC IAL, L A W S — M IC H IG A N

mall loans. (See Statute o f 1916, Small Loans Act.) ' N o bond can
be issued by a corporation at more than 7 per cent.
Judgm ents in lower courts may be entered within four days of
riflfault 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 o f the record.
Lim itation o f S uits. Contracts or liabilities, express or implied
and not under seal and not otherwise limited, six years; real actions,
those upon an attested note, if suit is brought by original payee or
his executor or administrator, and personal actions on contracts not
limited twenty 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 o f the statute o f limitations as to a defen­
dant until he comes into the State. I f the person entitled to bring an
action is a minor or is insane or imprisoned when the right to bring
such action first accrues, such action may be commenced within the
time hereinbefore limited after the disability is removed. The Statue
does not run against those residing out o f the State.
- Married W o m e n . The real and personal estate of a married
woman, acquired at any time, remains her sole and separate property,
not subject to the control of her husband, nor liable for his debts.
Married women may carry on trade or business, make contracts, sue
and be sued, in all matters relating to their separate property, and
such contracts are not binding upon the husband. Wife carrying
on 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 con­
tracted. Deeds, but not mortgages can be made direct from husband
to wife. (See Dower and Curtesy, as to rights o f husband in estate
of deceased wife.)
M ortgages. Mortgages now in common use contain a provision
authorizing a sale of premises in case of a breach of any of the con­
ditions. Power of sale mortgages may be foreclosed b y a sale in
accordance with the provisions of the power contained in the mort­
gage, and an affidavit that the mortgagee has complied with the pro­
visions of the mortgage shall be recorded In the registry of deeds
within thirty days after the sale. Notice of the sale must be pub­
lished 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 B ills o f E x ch a n g e . The law of negotiable instru­
ments is codified in Revised Laws, Ch. 73, taking effect January 1,
1899. It does not apply to Instruments made and delivered prior
to that date. An instrument to be negotiable must be In writing,
signed by the maker or drawer; must be a promise to pay a sum cer­
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 where pay­
able. An Instrument is payable on demand when it is expressed
payable on demand, or on presentation, or when no time for payment
Is expressed. When an Instrument Is payable on demand present­
ment must be made within a reasonable time; presentment must be
made at a reasonable hour on a business day, at the place specified;
when no place is specified or address given then at the usual place of
business or residence; the instrument must be exhibited and when
paid delivered to party paying it. Presentment for payment Is dis­
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 Sunday 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 pre­
sentment 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 at request o f holder the drawer and
indorsers are released.
A bank Includes any person or association of persons carrying on
business of banking, whether incorporated or not.
The negotiable instrument act of Massachusetts is Nabout the same
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 baqk
thereof, shall be entitled to notice of the non-payment thereof the
same as Indorsers. Checks drawn on a bank may be paid notwith­
standing the death of drawer if presented within ten days after date,
aqd a savings bank order if presented within thirty days after date.
Suits; Civil actions in general* except those concerning land (if
one of the parties lives in the State), must be brought in the county
where one of them lives or has his usual place of business. Where
all parties are non-resident, action may be brought In any county.
Attachment of property owned by defendants residing out of State
may be made sufficient to give jurisdiction in suit after notice published
by order of court. Such n o tice lo be given within one year from the
entry of the suit. Persons bommorant in State may also be arrested
on mense process and held tò bail.
à 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
charge?, and person having title may redeem In two years after notice
if property is taxed to a person unknown, or to tenant or occupant
not owner, or wrong person or mortgagee of record. The purchaser
under a tax sale, if resident in the city or town where the estate is,
must record his residence òr place of business. If he resides elsewhere
he must appoint an agent or attorney and record such appointment,
under Statute 1916 ch. 269 incom e from stocks, bonds, etc., is subject
to an annual tax at rates stated. For full details see said ch. 269.
Legacy and S u ccession TAX.
All property within the state
belonging to inhabitants o f the state and all real estate within the
state belonging to persons who are not inhabitants which shall pass
by will or by laws regulating intestate succession or by deed, grant or


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Federal Reserve Bank of St. Louis

1621

gift to take effect m possession after the death o f the grantor to any
person, absolutely, or in trust, except to or for the use o f charitable,
educational or religious societies or institutions the property o f which
is by the laws o f the state exempt from taxation, or for or upon trust
for any charitable purposes to be carried out within the State, or to or
for the use of a city or town within the State for public purposes, shall
b esubject to the following tax: all property passing to a husband, wife,
lineal ancestor, lineal descendant, adopted child, lineal descendant of an
adopted child, the adoptive parent, or lineal ancestor o f an adopted
parent, the wife or widow o f a son, or the husband of a daughter, or
the decedent, shall be subject to a tax of one per cent of its value if
said value does not exceed $50,000, to a tax o f tWo per cent if its value
exceeds $50,000 and does not exceed $250,000, to a tax of 3 per cent
if its value exceeds $250,000 and does not exceed $1,000,000, and to a
tax o f 4 per cent if its value exceeds $1,000,000. All such property
passing to or for the benefit o f a brother, sister, nephew or_niece o f a
decedent, shall be subject to a tax of 2 per cent of its value if its value
does not exceed $10,000, to a tax o f 3 per cent if its value exceeds
$10,000, and does not exceed $25,000, to a tax o f 5 per cent if its value
exceeds $25,000 and does not exceed $50,000, to a tax of 6 per cent if
its value exceeds $50,000 and does not exceed $250,000, to a tax of
7 per cent if its value exceeds $250,000 and does not exceed $1,000,000,
and to a tax o f 8 per cent if its value exceeds $1,000,000.
Property passing to or for the benefit of any other person, not
exempt, shall be subject to a tax o f 5 per cent if its value does not
exceed $50,000; to a tax o f 6 per cent if its value exceeds $50,000, and
does not exceed $250,000; to a tax o f 7 per cent if its value exceeds
$250,000 and does not exceed $1,000,000; and to a tax of 8 per cent
if its value exceeds $1,000,000.
N o bequest, devise, or distributive share passing to a husband, wife,
father, mother, child, adopted child, adoptive parent of a deceased,
unless its value exceeds $10,000, and no other bequest, devise, o f dis­
tributive share of an estate unless its value exceeds $1.000 shall be
subject to a tax.
'
Shares of stock of non-resident decedents in Massachusetts corpora­
tions, national banks and trust companies are subject to a tax on the
transfer thereof.
T ransfer o f C orp ora tion S tock . The delivery of a stock certifi­
cate of a Massachusetts corporation to a bona fide purchaser or pledgee,
for value, with a written transfer of the same, or a written power of
attorney to sell, assign or transfer the same, signed by owner of cer­
tificate, shall be a sufficient delivery to transfer the title as against
all parties.
T ru stee P rocess. 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.
W ills. Any person of full age may make a Will disposing of his
estate. The will must be signed b y 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.

S Y N O P S IS OF

THE LAW S OF MICHIGAN
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
Revised by H enry W trascn and E dward F. W unsch ,
Attorneys at Law, Detroit, Michigan.
( See Card in Attorneys’ List.)
A c k n o w le d g m e n ts of real estate instruments may be before one
of the following officers: 1.— Within this State; Any judge, clerk
or commissioner of any court of record, notary public, justice of the
peace or master in chancery. The official should certify that “ On
this day before me personally appeared......................... . to me known
to be the person or persons who executed the foregoing Instrument
and acknowledged that he (or they) executed the same as his (or
their) free act and deed.” Notary’s certificate must show date of
expiration commission. Such instruments must have two subscribing
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 com­
missioner appointed by the Governor of this State for that purpose.
Any such instrument may be executed according to the laws of any
such other state or territory. If officer has no seal, certificate of the
Clerk of the county or district, or of the Secretary of State within
which taken shall be attached. 3.— In any foreign country: notary
public, or minister plenipotentiary, minister extraordinary, minister
resident, charge d’aflairs, or commissioner or counsul of the United
States, appointed to reside therein.
*
A ctio n s. Common law forms of pleadings are used, but in some
respects modified by statute.
Non-resident plaintiffs must give
security for costs.
A d m in istra tion o f E sta tes: In probate court of each county.
Claims are passed on by judge of probate or commissioners appointed *
for eaoh estate: within such time allowed by the court, not exceeding
in first instance one year nor less than four months; may be extended
not to exceed two years from date; the court may revive commis­
sion any time before estate is closed and allow further time three
months to examine any claim; an appeal to circuit courts from allow­
ance or disallowance of any claim. All claims barred, not presented
before administration is closed:—
A d m in is tra tio n of Intestate estates Is granted: 1st, to surviv­
ing husband or wife, or kin or grantee, or such one of them as judge
may appoint, or as they may request. 2nd, to one or more of the
principal creditors. 3rd, to such other person as the judge may think
proper. Non-resident administrators and executors appointed in
other states, territories, or foreign countries cannot sue as such in
this State without procuring administration in this State.
A ffid a v its may be taken by any judge, master in chancery, clerk
of court, justice of the peace, police magistrate, notary public, or
circuit court commissioner. Any oath authorized or required to be
made, without the State for use in Judicial proceedings here, must be
authenticated 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 oi 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
suit make a prima facie case, unless denied by the defendant’s affidavit
filed and served with plea.
‘

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A J S fD

C O M M E R C IA L L A W S — M IC H IG A N

A lie n s. May inherit or purchase and hold and convey personal
and real estate.
A r b itr a tio n . Competent parties to any controversy which Is or
might be the subject of an action at law or suit In equity, may agree
to arbitrate, and judgment of any circuit court rendered upon the
award. No arbitration of claim o f any person to any estate in fee
or for life in real estate.
A rrest. B y writ of capias In personal actions In tort and In actions
for money collected by any public officer; o f upon promise to marry;
also by warrant allowed by any justice of the peace or judge of a
eourt 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.
A ssig n m e n ts for the benefit of creditors are void unless made
without preferences; must comprise all of assignor’s property not
exempt from execution. The circuit court In chancery has super­
visory jurisdiction of such assignments.
A tta c h m e n ts . Writs m aybe 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 abseond from
the State or has assigned or disposed of o f 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 dup but to become due, upon satis­
factory showing to the circuit judge, but In such cases judgment can­
not be taken until debt is due. May Issue In actions o f tort against
non-residents in certain cases.
B an k s. Incorporation o f:— A ny number o f persons not less than
five may associate to establish for a period not to exceed thirty years,
commercial banks, savings banks, and banks having for both classes.
Capital required Is graded— 520,000 to $250,000, according to popula­
tion of cities or villages where conducted. Upon filing articles o f asso­
ciation, commissioner of banking department and Secretary of State
Issue certificates of organization; board of directors chosen b y 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 50 per cent of the capital, on real estate securities, by
two-thirds vote of directors, exoept 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 iiaDle equally and
ratahly 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 pre­
vent 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 pay­
ment o f a forged or raised check unless notified within three months
after return of voucher.
All shares o f bank stock shall be assessed against their owners in
the township, village, or city where the bank is located, 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 associate to establish— capital graded from $100,000
to $5,000,060 according to population of cities where conducted;
deposit with the state treasurer 50 per cent of the capital stock
to bonds or real estate mortgages worth double the amount secured;
powers such as are customary for trust companies. They cannot
do any banking business.
C ollaterals. 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; bu t before public
sale, ten days notice must be 'given and served on pledger or legal
representative personally or by mail; such sale must be between
nine o ’clock forenoon and sunset, at a public place in the township,
city, or village where held.
C o n d itio n a l Sales. Are valid between the parties: if consignee
or purchaser, on condition title is retained by seller, is authorized by
the contract to sell, all such sales are valid. The consignee or pur­
chaser cannot make valid sales against the legal owner without the
authority of consignor or legal owner. (See Liens.) (See Frauds.)
C o n v e y a n ce s. Any perspn 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 pos­
session 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.
C orp ora tion s. Banks, mining, manufacturing. Insurance— fire,
marine, accident, burglary— printing and publishing, manufacturing
and mercantile, or a union o f the two, partnership associations, read
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 o f state, articles o f 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 direc­
tors. May issue preferred and common stock o f 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.


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and paid, before any dividend paid on the common. Artlolps
association to be recorded in the county clerk's office of countv w w l
operations carried on, and office of the secretary of state.
Mav hnil
real estate for the purpose of the corporation and such as acmiiria
as security or in payment of debts; managed by not less than thre«
directors chosen by the stockholders annually hold office until sim!
cessors are chosen; make duplicate reports in January of Febnia™
annually for the fiscal year last ending, of the financial condition anft
property of the corporation to secretary of state; stockholders are
liable for labor debts; they make all .by-laws for corporation
Foreltm
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 aeent of
until authorized to do business. Sales of goods or merchandise bv
the right of inter-state commerce not affected by state laws
C ou rts. T erm s a n d J u ris d iction . 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, muni<>
ipal and recorders’ courts.
B a y s o f G race. Abolished.
B e p o sition s. Testimony of any witness without the State or
more than fifty miles from the court may be taken de bene esse
before any judge of any state or of the United States, or of any foreign
country, or before any circuit court commissioner in this or any other
state or of the United States, or any commissioner of this State, any
consul or consular officer, justice of the peace, officer or notary publle
authorized to administer oaths in the state or county where taken
and not Interested as attorney or counsel or In the event of the cause*
reasonable notice given in writing by party or his attorney proposing
to take, to opposite party or his attorney of record, stating names of
witnesses, time and place of taking and official before whom to be
taken. Commissions to take depositions of any witnesses may be
issued by circuit court wherein the suit Is pending or by the Judge or
register thereof, or by a Justice of the peace in a suit before him on
written interrogatives. Fees for taking, certifying, sealing and for­
warding $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.
B e scen t. 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 the children of deceased
brothers and sisters; if none such relatives, to next o f 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
o f 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 acknowledg­
ment. 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 lauds is limited to the dower and
homestead right and the residue shall descend as abpve 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 hus­
band, two-thirds to her children o r 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.
B ow er. 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
upwards may bar by joining in husband’s conveyances and mort­
gages or by deed alone to one who has husband's title, intent to bar
being expressed; or by Jointure secured as bar.
E x e cu tio n . May issue to any county at once, unless stayed after
judgment in circuit Court, in Justice courts, expiration of flye 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 actiohs 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. Execu­
tions from justice courts do not run against real estate.
E x e m p tio n s. Homestead— selected b y the owner and occupied
by him; not exceeding forty acres of land and dwelling thereon; or one
lot with dwelling thereon within any recorded town plat or city or
village not exceeding in value $1,500. Same cannot be alienated or
Incumbered without consent of wife or sold on any execution or any
other final process from any court, unless appraised to exceed the
value of $1,500 and that amount Is paid or realized on sale under
such process. Exemption of homestead continues during its occupa­
tion by the widow or minor children of deceased person who when
living occupied the same.
F ra u d . Criminal fraud— obtaining the signature of any person,
firm, or corporation with intent to defraud fraudulently issuing or
selling or duplicating and disposing of any stock, scrip, or evidence 01
debt o f ¡any bank or other incorporated company of this State; issue
of any false receipts by warehousemen, merchants, or their agents

B A N K IN G A N D C O M M E R C IA L L A W S — M IC H IG A N
'
or to wrongfully dispose o f or convert property to their own
Se after Issuing receipt; wrongfully removing or disposing of any
“ trt,,aire by mortgagors or oi property neia Dy contract oi puxouobc
Sitiwvut legal title by such purchaser or of property held under any
ula« bv lessor. For any officer or stockholder of any bank or any
g c S oerson for such bank; to sign, Issue or knowingly put in circulaHnii anv note or bill of any such bank, before the capital stock is
in 0r before the president and directors thereof have compiled
Srith the law; for any officer or agent of any bank knowing such bank
Si ha insolvent or in contemplation of Insolvency, or for any assignee
Jip nrooerty of such bank to sell or dispose of any money or property
«t such bank with Intent to defraud, delay or hinder creditors thereof;
nr for any agent or person to fraudulently obtain or dispose of any
money belonging to any insurance company organized in this State.
F ra u d s — S tatu te o f.
No executor or administrator is liable on
»ny special promise to answer damages out of his own estates.
Fraud, C ivil. Sales, transfers and assignments of stocks o f goods,
wares merchandise and fixtures in bulk pertaining to conduct of any
husiness. otherwise than in ordinary course of trade of seller, etc.,
wild as against creditors, unless the seller, etc., five days before sale,
make inventory of the goods and cost price to seller of each article
and unless the purchaser demands from seller list of names and
addresses of creditors and his Indebtedness, and within five days
before taking possession and payment notifies every creditor of such
«ale.
'
¿S®
Garnishm ent. Process may issue In any action brought in any
lustice court or circuit court on contract expressed or implied, judg­
ment or decree, to hold whatever property any person may own or
have belonging to the debtor. Bills of exchange and promissory
notes due in the garnishee’s hands at the time of serving summons
are eamishable. Property, real or personal, things In action, equitable
interests, held by fraudulent transfer from the debtor and any prop­
erty liable to execution or to the payment of the debts of the debtor
in the garnishee’s hands may be recovered; wages of any householder
not more than $30 and less than $8 for his personal labor, and of any
other person for labor not more than $15 and not less than $4; and
benefits payable b y fraternal beneficiary societies, shares in building
and loan association of any debtor, except as to one having a home­
stead exemption, are exempt from garnishment.
Holidays, (Legal) January 1st, February 12th, February 22nd,
May 30th, July 4th, first M onday in September, Thanksgiving Day
as specified by the Governor o f State, December 25; every Saturday
from 12 o’clock noon to 12 o ’clock midnight, all National, State,
County, or City election days.
Husband an d W ife. If sued together she may defend and If
either neglect to defend the other may be ordered to defend for both.
If he deserts her she may be authorized by the probate court to proseoute or defend in his name. If either wrongfully retains the other s
property, acquired before or after marriage, the owner may sue for
same as if unmarried. Neither liable for the debts o f the other before
or after marriage, nor earnings or property of either nor the income
thereof; nor shall either be liable to make compensation for labor
or services rendered for the other. Either may constitute the other
an attorney in fact to dispose of property. Expenses of family and
children’ s education are not chargeable upon the property of the wire
but are chargeable against the husband and he may be sued therefor.
Interest. Legal rate 5 per cent but by written agreement may be
charged not to exceed 7 per cent. Forfeiture of all interest is penalty
for usury. When any installment of interest upon any note, bond,
mortgage or other written contract shall become due and remains
unpaid, interest Is allowed on such installment from the time It became
due at same rate specified in the obligation or at the legal rate. Legal
rate collectable on all moneys due on any written obligations and on
all moneys due on all contracts express or Implied, whether verbal
or written; and on settlement of accounts from day o f ascertaining
balance due; and on judgments from day of entry; and on verdicts of
jury from date to date of entry of judgments thereon. In computing
time of interest and discount on negotiable paper, a month means
a calendar iponth and a year a calendar year of twelve months.
Judgm ents of courts of record are not liens on real estate or
personal property until by levy thereon of execution issued from the
courts upon such judgments. Liens under execution levied upon
real estate exist five years from and after the levy. Judgments expire
by limitation in ten years from date of entering in courts o f record
and six years in justice courts, and cannot be renewed except by action
at law thereon before expiration. Judgments of the justice of the
peace may be entered in the circuit courts on transcript duly taken
to the circuit court and thereupon become judgments of such circuit
courts.
Liens. Any person, who pursuant to a contract with any owner,
part .owner or leasee of any land, furnishes labor or materials in the
a construction of a building, etc., on such land, shall have a lien, on such
structure and land to the extent of one quarter section or if in a city
or village, the lot or lots upon which such structure is situated. And
any sub-contractor, who furnishes materials or labor in carrying fore­
ward or completing such contract shall have a lien upon such building
and land to the extent of the interest of such owner, etc. Any person,
artisan, or tradesman for labor and skill applied upon any property
delivered for that purpose shall have a prior lien for amount due for
such labor. Hotels, boarding houses and lodging houses have a lien
upon baggage and other valuables of guests, boarders or lodgers for
accommodations. Any person keeping and caring for domestic ani­
mals intrusted to them for that purpose have a lien for proper charges.
Lim itation o f Suits. Judgments of courts of record and sealed
Instruments ten years, justice court judgments six years; accounts
and notes and other simple contracts and for taking, detaining or
injuring goods and chattels, six years from the date the action accrued;
revivor; part payment, or promise in writing to pay. Absences from
the State deducted from the period of limitation. Mortgages fifteen
years after due or after last payment thereon. For trespasses on
lands, assault and battery, false imprisonment, slanderous words or
libels and mal-practice against physicians, surgeons, and dentists,
two years. For misconduct of sheriff or their deputies, three years,
and for personal Injuries three years. For the recovery of real prop, erty, five years where the claim arises against executors, guardian s
or sheriff’s deed; five years where the defendant claims and is in pos­
session of lands under deed made by auditor general of this State for
taxes; and by minors and others under legal disabilities three years
after removal of such disabilities: in all other cases fifteen years.
Limited P artn erships. May consist o f one or more general and
one or more special partners. Specials contribute specific ■amount
of capital in cash or property at cash value, and If actually paid in
not liable for firm’s debts in excess of such special capital. General
Partners transact the business of the firm.
.
Married W om en . May make contracts in respect to their own
property and may hold and enjoy, and have the same rights and
remedies regarding their property as if unmarried. They may carry
on business in their own names with their own property by consent
oi their husbands; cannot enter into partnership with husband or
any other person and become liable for the firm contracts. Married
women’s contracts to pay or to become liable for debts of husbands or
other person voidable, may however charge their real estate or per­
sonal property to secure such indebtedness by deed, mortgage or


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Federal Reserve Bank of St. Louis

1623

contract. Married women are entitled to have and to hold their
earnings made by their own personal effort, and may make any con­
tracts relative thereto.
M ortg a g es on real estate, executed and acknowledged the same
as deeds; may be foreclosed under power of sale by advertisement
or in circuit court in chancery of the county wherein the property
is situated. Trust deeds not in customary use but may be made and
executed and will be treated as mortgages.
Chattel mortgages and bills of sale; intended as security by mort­
gagor, signed and delivered to the mortgagee, sufficient between the
parties, but void as to creditors, subsequent purchasers and encum-,
brancers In good faith and without notice, unless such mortgages and
bills of sale or true copies are filed In the city or township clerk’s office
where mortgagoi' resides, or if non-resident of State, in city or town­
ship where the property is situated; and unless affidavit of mortgagor
or of some one for him having knowledge of the facts is annexed to
the mortgage or bill of sale, showing consideration is actual and
adequate and in good faith. W ithout such affidavit officers forba.de
to receive and file such mortgages; cease to be valid against creditors,
subsequent purchasers, and encumbrancers in good faith, on expira­
tion of year from filing date, unless renewed within thirty days next
preceding expiration by affidavit of mortgagee showing’ his interest,
etc., filed and annexed to the mortgage In said clerk’s office; likewise
each succeeding year while the mortgage exists.
N eg otia ble In stru m en ts. A promissory note is an unconditional
promise in writing to pay a sum certain in money, on demand, or at
a fixed and determinate future time, to the order of a specified person
or to bearer.
.
^
A bill of exchange Is an unconditional order of one person to another
requiring the drawee to pay to a certain person, or order, or bearer on
demand or at a fixed or determinate future time a certain sum of
money. May be payable in installments and contain provisions that
on default the whole sum of money shall become due with exchange,
fixed or current rate, interest and attorney’s fees for collection. May
authorize sale of collaterals and confession of judgments. If it reads
“ I promise to pay," all makers are jointly and severally liable.
Must not be payable upon contingency. Cannot waive exemption
from execution. Need not specify ‘ ‘for value received’ nor place
where drawn or payable. If issued, accepted, or indorsed when over
due is payable on demand. May be payable to two or more payees
Jointly or one or more of several payees. Want or failure of con­
sideration, a defense against one not a holder in due course, partial
failure a defense pro-tanto. One not a party, or the payee of the
paper placing a signature in blank on the paper before delivery becomes
an endorser. Indorser engages on due presentment the paper shall
be honored and that he will pay to holder or any subsequent Indorser,
who may be compelled to pay; where maturity falls on Sunday or on
a holiday, payment due on the next business day; but where all of such
day not a holiday may if payable on demand be presented before noon.
Fraud in procuring signatures and delivery defense against any holder.
Presentment not necessary to charge-anyone primarily liable. If
not payable on demand present on the day due; if on demand present
within a reasonable time after issue; bill of exchange payable on
demand present reasonable time after last negotiation.
Fraudulent or material alterations do hot affect the original instru­
ments in the hands of innocent holder in due course. Unconditional promise in writing to accept a bill of exchange,
given before or after drawn, valid in favor of all who take it upon
faith thereof for value; holder may decline qualified acceptance; if
he takes qualified acceptance, drawers and indorsers are discharged.
Protest of foreign bills of exchange may be made by a notary public
or any respectable resident of the place of payment in the presence of
two or more creditable witnesses; drawee is not liable unless he accepts.
Check or a bill of exchange, on a bank payable on demand, must be
presented reasonable time after issue, and if dishonored notice must
be given or drawer is discharged to extent of loss caused ;does not
operate to assign any part of drawer’s funds; bank is not liable unless
it accepts or certifies. If holder has check certified drawers and
indorsers are discharged.
.
K
IH '
.
The present negotiable instruments law of Michigan took effect
Sept, 16, 1905, and repeals all acts or parts of acts inconsistent with
its provisions; but does not apply to instruments made prior thereto;
materially changes the law in this State and should receive special
examination in every doubtful case.
P ow er o f A tto r n e y . Almost every act that any person, firm or
corporation may perform, may be performed by an1attorney in fact.
Conveyances, mortgages, or leases for more than three years’ term
by attorney in fact, the power of attorney must be in writing signed,
sealed and acknowledged same as a deed of lands, to be admitted for
record or to proof thereof.
P rob ate L aw . (See Administration of Estates.)
P rotest. (See Negotiable Instruments.)
R e p lev in . Goods or chattels wrongfully taken or detained may
be replevined by owner or part owner or party entitled to possession.
Affidavit of plaintiff or agent necessary for issue of writ. If from
circuit courts plaintiff required to give bond with sufficient sureties
to the officer within twenty-four hours after seizure and appraisal of
the property which must not be delivered to plaintiff within fortyeight hours; and in the meantime if the defendant shall give sufficient
bond to the officer he shall return the property to the same person
from whom he took it; In that case if plaintiff recovers he may recover
on the defendant’s bond: if he fails defendant may recover on plain­
tiff’s bond according as the judgment may warrant. In justice courts
bond with sufficient sureties must be given and filed in double value
of the property before writ issues.
#
T axes. State and county payable every year after December 1st,
delivered to county treasurer March 1st, thereafter, and if delinquent
bear interest 1 per cent per month. Returned to auditor general of
State, if not paid, and by him enforced by foreclosure in chancery In
every county, and the taxable property sold under decree of the
court by county treasurer each parcel for the amount of taxes and
charges against same: redeemable one year thereafter and does not
become absolute until proceedings taken by purchaser for writ of
assistance, which must be instituted within five years by service of
written notice upon owners six months before Application for such
writ. If decree regular and property taxable, and due notice is given
and served, purchaser is entitled, upon due proof thereof to writ of
assistance and possession unless redeemed pending the notice by
payment of double the amount paid by purchaser and $5.00 for each
parcel redeemed. City taxes are governed by charter or by the
general act under which cities and villages are organized..
W ills. C odicils. Every person of full age (twenty-one years) and of
sound mind may make; must be in writing, signed by testator or by
some person in his or her presence duly authorized by him or her and
attested and subscribed in his or her presence b y two or more witnesses
competent as guch at the time. If one of the subscribing witnesses
shall testify to the execution of the will In all particulars and, testa­
tor was of sound mind at the time will was made, the court may
admit the will, in case no person appears to contest it; if none of
the witnesses reside in the State at the time of proving the will, the
court may admit the testimony of other witnesses to prove testator’s
sanity and execution and proof of the signature of testator and sub­
scribing witnesses. Probate of will conclusive of its due execution
and cannot be assailed collaterally. Foreign wills, duly admitted to
probate without the State, may be admitted and recorded in any
county of the State in which testator left real or personal estate by
duly filing, an exemplified copy of said will and of the record admitting

1624

B A N K IN G A N D C O M M E R C IA L L A W S — M IN N E S O T A

same to probate, a nuncupative will m which the value ot the estate
bequeathed does not exceed $300. duly proved by two witnesses, may
be allowed. Wills niay be revoked by Dinning?* tearing1, cancelling,
pr obliterating with Intention of revoking same by testator, or by some
other writing signed, attested, and subscribed In the manner provided
tor execution of wills but shall prevent revocation implied by law.

S Y N O P S IS O F

THE LA W S OF MINNESOTA
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
SUPrepared and Revised by M oore , O ppenheimer & P eterson
Attorneys at Law, St. Paul. (See Card in •
Attorneys’ List.)
A c k n o w le d g m e n ts may be certified by the following officers:
l. Within the State by a resident Judge, clerk or deputy clerk oi
any court of record therein, a notary public, justice o f the peace,
town, city or village clerk, or recorder,, court commissioner, register of
deeds, or county auditor, or their deputies, county commissioner, or
member o f the legislature. 2. Out o f 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 of the
ieace, or any commissioner appointed by the governor of this State
or that purpose. 3. In foreign countries by a notary public, or
by any minister, chargé d ’affaires, commissioner, consul, commercial
agent or other consular or diplomatic officer of the United States
appointed to reside in such country, and deputies or other represen­
tatives o f such officers. The form o f the certificate/may be, “ On
.............. . . . . d a y o f ........................ . . , 1 9 .'..., before; me per­
sonally appeared...................to me known to be the person described in,
and who executed the foregoing instrument and acknowledged that he
executed the same as his free act and deed. ” In case of corporation
it may be, “ On this .......... day o f ........... 1 9 .., before me appeared
A. B. to me personally known, who being by me duly sworn
did say that he is the president (or other officer) o f (name of corpo­
ration) , that the seal affixed to the foregoing instrument is the cor­
porate seal o f said corporation and that said instrument was executed
In behalf o f said corporation by authority o f its board of directors,
and said A. B acknowledged said instrument to be the free act
and deed o f said corporation. ” I f made outside the State the impres­
sion o f the official seal o f the certifying officer must be affixed, or
there must be attached the certificate o f the clerk o f a court o f record
o f the county or district in which it is made under his seal that the
signature o f the certifying officer is genuine.
A ctio n s. The distinction between actions at law and suits in
equity is abolished. There is only one form of action. It is called
a .civil action and must be prosecuted in the name of the real party
in interest except that executors, administrators, trustee of an express
trust and persons expressly authorized by statute may sue without
joining the person for whose benefit the suit is brought.
A d m in is tr a tio n o f E states, Estates of deceased persons are
administered in probate courts o f which there is one in each county
presided over by the probate judge o f the county.
In granting letters of administration preference is given: 1. To
the surviving spouse or next of kip or such suitable person as they
or either of them select. 2. If no application Is made for thirty
days after death o f 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
fo'f good cause to a date not more than eighteen months after notice
given o f the order. On proof by affidavit that there are no debts
the time limited may be three months. Notice of the order is given
by publication thereof once each week for three weeks in a newspaper
in the county. Claims not presented within time limited are barred.
Non-resident executors and administrators may sue in this State.
A liens. (See right to hold property.)
A r b itra tio n ; All controversies which can be the subject of a civil
action may be submitted to one or more arbitrators for decision,
except a claim to an estate in fee or for life in real estate.
A rrest. There is no arrest for debt!
A ssig n m e n ts. Statutes relating to assignments for the benefit of
creditors are in force except as affected by the U. S. Bankruptcy Act
of 1898.
' Practically they may be said to be superseded by that act.
A tta c h m e n t. Before allowing a writ of attachment, the court
must require of the plaintiff a bond in the sum of at least $250, and
an affidavit o f the plaintiff, his agent or attorney. (1) That the debt
was fraudulently contracted or (2) the defendant Is a foreign corpora­
tion or non-resident or (3) has departed from the State as he believes

Î


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Federal Reserve Bank of St. Louis

with intent to defraud or delay his creditors, or to avoid the servn* „t
a summons or keeps himself concealed therein with llke lntent
has assigned, secreted, or disposed of his property with Intent“to
or defraud his creditors or is about to do so.
ent t0 delfty
B an k s. Three or more persons may Incorporate as a bank C»m
tal required is $10,000 in towns of 1,000 or less population- S i? nnn
In towns of 1,000 to 1,500; $20,000 in towns of 1 500 tn ? non. °S
f WnS exceeding 2,000 population Capita“ stockm usfbe
fully paid in cash before bank can do business
StopkhniriAro\*
individually liable for debts of bank in an a d m ^
the par value of stock owned by them, and this liability S n f f i f t
year after any transfer of the stock. At least one-flfth of tlm net
profits must be placed in surplus fund before any dividend is paid uitil
the surplus amounts to 20 per cent of the capital,and this surplus must
be maintained unimpaired.
» humus must
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 Pe**s°{L corporation or firm, for money borrowed, including
therein liabHities of the several members thereof, shall kt no time
exceed 15 per cent of its capital and surplus. It must have a resem
equal to one-fifth of all its matured or demandable liabilities, one-half
o f 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.
*
1,110
w ■•jwuiuq xilu uoLdino eneetive April 20, 1917.
r®PelTinf Property for transportation between points
within the State, liable for loss, damage or injury caused by it or
void1* Camei* 611 route* and a11 contrary provisions in Bill of Lading
. C h a ttel .M ortgages. 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
register of deeds of the county 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. I f the mortgagor
resides in St. Paul, Minneapolis or Duluth or is a non-resident and
the property is situated there, the mortgage must be filed with the
city clerk o f such city instead o f the register of deeds of the county
Duplicates or copies certified by any officer with whom the mortgage
has been properly filed, may be filed in other places wherein any part of
the property was situated when the same was made. As against
creditors of the mortgagor and subsequent purchasers and mortgagees
in good faith the lien does not continue beyond the term of six years
from the date o f 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 o f the debt and no longer.
Chattel mortgages given by a married man or woman on property
exempt from execution must be executed by both husbahd and wife
if living.
C on v ey a n ces. Deeds and mortgages of real estate must be exe­
cuted in the presence of two subscribing witnesses and to entitle them
to record must be acknowledged 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.
C orp ora tion s. May be organized by any number of persons, not
less than three, for the purpose of engaging in any lawful business.
The amount of capital stock shall in no case be less than $10,000,
divided into shares of not less than $1.00 or more than $100. The
Incorporators must sign and acknowledge a certificate specifying: 1.
the name, general nature of business and principal place of transacting
the same. 2. Period of its duration if limited. 3. Names and
places of residence of incorporators. 4. In what board manage­
ment Is vested, date of annual meeting at which such board shall be
elected, names and addresses of persons, composing board until first
election. 5. Amount of capital stock, how the same is to be paid,
number of shares and par value of each, and if more than one class, a
description, and terms of issue and method of voting of each. 6.
Highest amount of indebtedness to which corporation shall be subject.
This certificate is filed with the secretary of state and with the register
of deeds of the county in which the principal place of business is
located and published in such county two successive days in a dally
newspaper, or two successive weeks in a weekly.
E very 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
appoint an agent residing'in the State, authorized to accept service
of process, and must file-with the secretary of stkte an authenticated®
copy of such appointment and o f 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
engagea only m the business of loaning money or Investing in securities,
nor to those organized to raise and improve live stock, cultivate farms,
can fruits or vegetables, nor to those whose sole business Is transpor­
tation of freight or passengers by water.
C ourts.
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 oh the first Monday of each month in each
organized county.
.
Municipal courts exist In certain cities, and are courts of record with
limited jurisdiction in civil and criminal actions.
Justices of the peace have no Jurisdiction in Civil actions where the
amount involved exceeds $100.
D ays o f G race are abolished.
D ep osition s may be taken at any place within or without the
State upon notice in writing, stating the reason for taking the same,
the time and place, and giving the opposite party one day for prepa­
ration, and one day for every 100 miles, exclusive of Sundays ana
the day of service, before any officer authorized to administer oaths.
D esceh t an d D istrib u tion o f P rop erty . 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 oi
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 ‘-hares to children and lawful issue of deceased chlia
by right of representation. 2. If no surviving child, or lawful issue
of deceased child, the whole estate descends tp surviving spouse li

BANKING AND COMMERCIAL L A W S — MISSISSIPPI
. Tf no issue or surviving spouse, to father and mother In equal
ihlraa or if but one survive, to such survivor. 4. If no surviving
S® . ¡mouse. father or mother, in equal shares to brothers and sisters
•nH lawful issue of deceased brother or sister. 5. If no issue, spouse.
fiVhar mother, brother, sister, or living issue of deceased brother
sister to next of kin. in equal degree, but those who claim through
rest ancestor preferred to those claiming through ancestor more
remote. 6. If no spouse or kindred, to the State.
Dower is abolished.
Employers L iability A ct, Effective since April 24, 1913.
Éxecutions issue from district courts any time within ten years
•rter iudsment and may run to-any county where judgment is docketed
«rs returnable in sixty days and may be renewed for sixty days at a
Hms on readest of judgment creditor or his attorney. Personal prop»rtv is sold on ten days’ posted notice; real estate on six weeks pub­
lished notice, and subject to redemption by judgment debtor or his
assigns within one year from date of sale.
Exemptions. Homestead outside of incorporated municipality
mav include eighty acres. If in Incorporated place containing less
Hmn 5 00(0 inhabitants, its area shall not exceed one-half acre, and in
lareer incorporated places one-third of an acre without regard to value.
F«milv pictures, library, musical instruments for use of family, wearin? aoDarel, beds, stoves, cooking utensils used by family, other house­
hold furniture not exceeding $500 in value, three cows, ten swine, one
voke of oxen and a horse, or in lieu thereof, a span of horses or mules,
twenty sheep, the wool therefrom raw or manufactured, food for
such stock for one year’s supply, one wagon, cart or dray, one sleigh,
two plows one drag, and other farming utensils not exceeding $300 in
value provisions for debtor’s family for one year’s support, tools kept
for purpose of carrying on trade, and stock manufactured in whole or
in part by debtor not exceeding In value $400: library of professional
man- presses, type, and tools of publisher of newspaper not exceeding
*2 000, and his stock In trade not exceeding $400; watch, sewing
machine, typewriter, bicycle, seed for use of debtor for one season not
exceeding certain amounts; library and apparatus of college or school;
money payable to wife or child from Insurance on life of deceased hus­
band or father not.exceeding $10,000; money or relief from benefit
association; money from insurance on exempt property; wages not
exceeding $35 for services rendered during preceding 30 days; but all
wages paid and earned within said thirty day period shall be con­
sidered a part Of (or all) o f said exemption (chap. 202, Laws 1915.)
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 ate 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.
Judgm ents may be entered by default In district courts at expira­
tion of twenty days after service of summons. When docketed in those
courts they become liens upon all real estate of the debtor in the county
where docketed then owned by him or afterwards acquired, and the
lien continues for ten years after the entry of the judgment. Trans­
cripts of judgments in justice and municipal courts may be filed in
district court and there docketed, and then become Hen on real estate.
Liens. To preserve a mechanic’s lien a verified statement must
be filed by the lien claimant within ninety days after furnishing the
last item of labor or material in the office of the register of deeds of
the county in which the improved premises are situated, or if claimed
upon a line of railway or its appurtenances with the secretary of state.
L im itation o f A ctio n s. On contracts express or Implied six
years; judgments ten years; to foreclose mortgages fifteen years; to
recover real estate, fifteen years. "But no action shall be maintained
on a judgment note, or other instrument authorizing Confession o f
Judgment unless begun within one year after Cause o f Action accrued ;
and no action shall be maintained upon any Judgment o f any Court o f
the IT. S. or o f any State or Territory entered by Confession under a
■ warrant of attorney, unless the action upon such judgment be begun
within one year after the rendition or entry thereof
Married W om en . Property acquired by wife before or after mar­
riage remains her separate estate. It is liable for her debts and torts
to thé same extent as If she were unmarried, and she may make any
contract which she could make If unmarried, except that no convey­
ance or contract for sale of her homestead or any Interest therein is
valid unless her husband joins in the same.
Both husband and wife are liable for necessaries furnished to and
used by the family.
M ortgages on real estate executed in the presence of two subscrib­
ing witnesses, acknowledged and recorded in the office of the register of
deeds of the county in which the mortgaged premises are situated may
be foreclosed by publication or by action. The mortgagor or his
assigns may redeem within one year from the date of the foreclosure
sale.
The authority o f an attorney conducting a foreclosure by adver­
tisement, must be in the form o f a Power o f Attorney, executed and
acknowledged by the mortgagee or assignee in the same manner as
a conveyance and recorded prior to the sale in the County where
the foreclosure proceedings are had.
The mortgagor may covenant to pay or authorize the mortgagee
to retain any attorney’s fee in case o f foreclosure o f not exceeding
$25; where the mortgage debt does not exceed $500; $50 where the
mortgage debt exceeds $500 and does not exceed $1,000; $75 where
the mortgage debt exceeds $1,000 and does not exceed $5,000; $100
where the mortgage debt exceeds $5,000 but does not exceed $10,000;
and $200 where the mortgage debt exceeds $10,000.
..
A Registry Tax o f 15 cents is imposed upon each $100 or fraction
thereof of the principal debt secured by any mortgage cçvering prop­
erty within the State o f Minnesota and recorded in said State. In
case the maturity o f any portion o f the debt so secured shall be fixed
at a date more than five years after the date o f said mortgage, the
amount of such Registry Tax shall be at the rate o f 25 cents on each
$100. No such mortgage or assignment or satisfaction thereof or
papers relating to its foreclosure, shall be recorded or registered unless
such tax has been paid, nor shall any such document or record thereof
be received in evidence in any court or have any validity as notice or
otherwise. If such mortgage describe real estate outside o f Minne­
sota, such tax shall be imposed upon such proportion of. the whole
debt secured as the value o f the real estate described in this State
bears to the value o f the whole real estate, such value to be deter- /
mined by the State Auditor upon application o f the mortgagee.
Notes and B ills o f E xchange. Uniform Negotiable. Instru­
ments Law has been in force since April 15, 1913. Commercial paper
*s payable at the time fixed therein without grace. When due
payable on Saturday or 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.
R ight to H old P rop erty . No person unless he be a citizen of the
i 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.


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Federal Reserve Bank of St. Louis

162$

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 5.099
acres or more than is necessary for its operation, and lands granted
it by the State or United States.
;* . . .
But this does not apply to lands acquiredm the collection ol debts,
nor ,to a person or corporation engaged in selling lands to actual
settlers, or engaged in manufacturing in Minnesota while so engaged.
Such persons or corporations not so engaged must sell what they had
April 13, 1911, within ten years from that date and sell what they
acquire subsequent to that date within ten years after they acquire It.
Sales o f G ood s. The Uniform Sales Act became effective April
20 1917.
>
T axes 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 follow­
ing the levy thereof, and if not so paid a penalty of 10 per cent at­
taches. If taxes on personal property are not paid before March 1st
of the year following the levy thereof, a penalty of 10 per cent attaches.
w in « . Every person of full age and sound mind may dispose of
property by Will in writing, sighed by the testator, or by some person
in his presence and by his direction, attested and subscribed In his
presence by two or more competent witnesses. Every person Includes
married women. If, after making a will the testatpr marries, the will
is thereby revoked.

S Y N O P S IS OF

THE LAW S OF MISSISSIPPI
RELATING TO
B A C K IN G A N D C O M M E R C IA L U S A G E S
Prepared and Revised by. C hambers & T renholm ,
Attorheys at Law, Jackson. (See Card, in Attorneys’ List.)
A cco u n ts. Sworn to entitles plafhtiff to judgment, unless defend­
ant files affidavit denying. The affidavit must be by the creditor or
his agent. All accounts must be itemized.
A ck n o w le d g m e n ts before any judge, clerk of a court of record
under his seal, justice of the peace, notary public, or member of the
board o f supervisors, before any police justice, or mayor of any city,
town or village. Acknowledgments in another state may be before
any of the judges o f 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 o f some court of record m 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 o f a court
of record havihg a seal 6f office. Acknowledgments or proof of
deeds to property in this State by persons in a foreign country may be
made before any court o f 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 gov­
ernor o f this State, or before any ambassador, foreign minister, sec­
retary of legation, or consul o f the United States. The certificate
«hall show that the party or party and witness were identified before
the officer, and that the party acknowledged the execution of the
instrument, or that the execution was duly proved by the witness or
witnesses. Acknowledgment must state that party acknowledged
that he signed and delivered" instrument.
A c tion s. All distinction as to forms abolished. Service five days
before return day. All action triable in the circuit court at first term
In which the defendant has been personally served with process thirty
days before the return day. Mandamus, quo warranto, mechanics^
liens, attachments, and replevin triable at return term on five days
notice.
A d m in is tra tion o f E states. 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 tjo be paid before
heirs, distributors, or legatees. Claims against insolvent estates are
paid pro rata.
• A ffid av its 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.
A liens ^ No restrictions on the rights or resident aliens to acquire
property or dispose of it
Non-resident aliens can not hold land, but
may take liens thereon to secure debts and purchase at foreclosure
thereof, and thereafter hold it for not longer than twenty years, with
power to sell to a citizen in fee; or he may retain It by becoming a
citizen.
A nneals from justice court to circuit court within ten days. From
circuit and chancery courts to supreme court within one year. Appeals
also in certain cases from board of supervisors and municipal courts.
A r b itra tion . Parties may submit to arbitration of one or more
disinterested arbitrators, with agreement that proper court shall enter
judgment;

1626

B A N K IN G A N D C O M M E R C IA L L A W S — M ISS ISSIPP I

A rrests made b y certain officers, or private persons may arrest for
offense committed In his presence. No arrests or imprisonment for
debt.
A ssig n m en ts a n d In so lv e n cy . N o insolvent law. An assign­
ment may be made for the benefit o f creditors. Debtor, though
insolvent, may prefer creditors, if in good faith and no benefit, direct
or indirect, is reserved. N o provision for the discharge o f 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 super­
seded by bankrupt law.
A tta c h m e n t. Against a debtor who is a non-resident or who
removes or is about to remove himself or property out of the State:
who so absconds or conceals himself that he cannot be served with a
summons; or who incurred the debt in conducting the business o f a
ship, steamboat or other water craft in some o f the navigable waters
o f this State; or who assigns or disposes o f his property, or some part
thereof, or is about to assign or dispose o f 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 o f debt, with the intent to place it beyond the reach of
creditors; or who has fraudulently contracted the debt or incurred
the obligation for which suit has been or is about to be brought, may
be attached. In addition to those named above, the following grounds
exist:
9. That the defendant is buying, selling, or dealing in, or
has within six months next before the suing out o f 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 o f money, knowing at thé time
that he or it was insolvent, or has made or published a false or fraudu­
lent 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 hin effects
out o f State before debt will be due, with intent to defraud. Non­
resident creditors have the same rights o f 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 deny­
ing grounds; but judgment on the debt, to be offset by damages in favor
o f defendant for wrongfully suing out attachment. A ny creditors may
intervene and contest ground o f attachment.
. A tta c h m e n t in C h a n ce ry on bill against the property, or debts
ol an absent, non-resident, or absconding debtor. A lien is acquired by
the suit. If a writ for the seizure of goods is obtained, bond is re­
quired. Available to non-residents.
B an ks. Required capital stocks as follows: In cities, villages,
and co mmumties with population 1,000 or less $10,000; population
, 1,000 and not more than 2,500, $15,000; population 2,500 and not
Hioj’e than 6,000, $25,000; population from 6,000 to 10,000, $35,000;
orrn?lore’ $50,000. This does not apply to -existing banks of
(1914.) There shall be a board o f bank examiners o f three men to
be elected, duties to enforce banking laws and examine banks period­
ically. Deposits guaranteed; depositors names not to be divulged;
Banks penalized for failure to comply with orders o f examiners;
Banks must have at least three directors; unlawful for any banks to
receive, deposits for six months in excess o f ten times its paid up
capital and surplus; Banks officers must n ot contribute to campaign
fund o f candidates.
..M l , except, national banks, are required to make a report, not less
chan four times each year, to the commissioner. And the commis­
sioner shall make requisition on all banks for these reports to be
made as o f dates prior to the date o f 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 o f the town or city where the
bank Is located. Resources and liabilities shall be stated in such
reports. Banks collecting drafts with bill o f lading attached must
“ Old. funds at least ninety-six hours. Banks must give notice to
administrator or executor o f deceased persons o f deposits o f money
and papers held for the deceased. Directors o f every bank to hold
*®hst three regular meetings each year and keep a complete record
°* ® p r o c e e d i n g s . Every bank with paid up capital o f 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 o f a trust company; may establish a special mutual
{pan department; in such department interest on loans not to exceed
8 per cent per annum. Bank not permitted to allow the use o f
Its name by others in making loans.
C h a ttel M o rtg a g e s a n d D eeds o f T ru st m ay 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..
C ollaterals. General law prevails.
C o n tra cts 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
to futures is forbidden and a ground for attachment. Gambling con­
tracts and ordinary contracts made on Sunday void. Contracts by
foreign corporations who have not complied with registration of
charter law are void.
C on v e y a n ce s. May vest title presently or in future. All estates
to land greater than for one year must be by deed, and to affect pur­
chasers 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 remain­
derman, 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, bar­
gain. and sell" operate as a covenant that grantor is seized of some
estate o f 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 under
C orp ora tion s. 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 charter.
Application for charter signed b y 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
•eoretary of state together with the fee for recording. The same to


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the attorney general for his opinion as to the constitutionality «ms
legality of the proposed corporation, after which it Is referred to
governor for his approval or disapproval. The governor then retumS
It to the Secretary of state with his action endorsed thereon h *?!
aP P foje it. the secretary of state shall record it in his office
certify to the same records, and transmits it to the applicants n
must be recorded in the office of the clerk of the cLnc°ry court
the county in which the corporation shall do business. Within 'thirtS
days after the organization, the corporation must make reftortS
the organization to the secretary of state. I f such report be not mad£
i w . chart,?r,i8r£ani ed S¥ U 3? vold’ and all persons doing busTnem
thereon shall be deemed partners in the business, and liable as such
Corporations thus created possess the powers usual and inclcW
to private corporations generally, but existence is restricted to flft*
years. Corporations created as above named may hold proDertv
necessary for their purposes, not exceeding one million dollars mamu
factoring companies and banks excepted, which may hold wodotht
to the amount not exceeding two million dollars.
v perty
,TJilder *he !»ws passed by the Legislature o f 1912 all corporations
whether domestic or foreign, are not allowed to acquire title to fan’
?£ .f0o A term* ^ yey 8’ *?• or own land ^ agricultural purposes ft
this State outside o f an incorporated city, town, or village. A cm.
poration may be lessor or lessee for not more than twenty years nt
as much as 10,000 acres o f land to be used for agricultural putdos«s
but any such lease or contract shall not be renewed or extended sn
as to authorize the holdings o f said lands for another period
This law does not prevent corporations from taking deeds of trust
or mortgages on real estate to secure loans or debts, or from acauirine
title thereto upon foreclosure o f such securities or from acquiring
title to land b y deed for the collection o f debts, and that all lands so
acquired may be used and operated after foreclosure for all agricul­
tural purposes during the time so held for not longer than twenty
years.
It is also the duty o f every corporation that shall acquire interest
**1 9T
land ip this State to file the deed to same in the office
o f the Chancery Clerk o f the county in which such land, or a Dart of
it, is located within sixty days after the date o f the deed.
I f any corporation or other person shall have acquired any right
title or interest in any land in violation o f this Afct, they shall be W
solved by a suit brought by the Attorney General o f the State or by
the District Attorney, if it is a domestic corporation, and if a nonresident corporation they shall not be permitted to do business in
this State, and the court shall thereafter appoint a receiver to take
charge o f all property in this State belonging to such corporation or
so held in trust and to dispose o f the same under order or the court
and after paying all debts o f the corporation and all costs and charges
incident to said suit, the remainder shall be paid and distributed to
the stockholders.
This Act does not affect the rights o f existing corporations in this
State, but is passed to prevent a monopoly in agricultural lands.
Corporations may take a lien on property real, or personal, to s
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 balanoe 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. All foreign corporations doing business
m this state shall file a certified and duly authenticated copy of its
charter or certificate with the secretary o f state. Charter must be
certified by the president and secretary or other chief executive under
the corporate seal. Fees are to be paid according to capital stock, viz.:
$10,000 and under, $20.00. Between $10,000 and $39,000, $40.00.
Between $30,000 and $50,000, $60.00. When over $50,000, one-tenth
o f one per cent and not to exceed $250.00.
C osts. Non-resident or insolvent plaintiff required to give security
though an insolvent may sue in forma pauperis.
C ou rts. Terms and Jurisdiction. Justices'courts meet twice each
month; circuit and chancery courts in each county twice a year;
supreme court twioe a year, to 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 to the circuit court and e converso.
C red itors’ B ills may be filed under general to subject equitable
assets and in aid of execution at law. Such bills may, under the
statute, be filed to subject property of a debtor fraudulently conveyed
without a Judgment and return of nulla bona; and this whether com­
plainant's debt is due or not. No bond is required unless a sequestra­
tion is desired.
C u rtesy an d D ow er. Both abolished since 1880.
D eeds. (See Conveyances.)
D ep osition s 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 offloer
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 cer­
tificate prima facie evidence of his character.
D escen t a n d D istr ib u tio n . Estates of inheritance, real and
personal descend. 1. To children aDd their descendants per stirpes.

2. T o brothers and sisters and father and mother to equal parts and

their descendants by representation. 3. T o the next o f kin according
to the civil law. Except among brothers and sisters there is no
representation among collaterals. Advancements must be brought into
hotchpot. N o distinction between children o f the whole blood and
those o f the half blood, except that children o f the whole blood are
preferred to those o f the half blood in equal degree. Where there is
no one to inherit property escheats. Illegitimates inherit from the
mother and from her other children and her kindred. Children or
illegitimates and their descendants inherit from brothers and sisters
of their father or mother and from grand parents. But children or
illegitimates do not inherit from any ancestor or collateral kindred if
there oe legitimate heirs o f such ancestor or collateral kindred, to the
same degree. Exempt property o f husband or wife descends to sur­
vivor and children as tenants in common.
D ow er a n d C u rtesy have been abolished since 1880.

B A N K IN G A N D C O M M E R C IA L L A W S — M ISSISSIPP I
irvideiice. In the main common law rules apply. Parties and
interested persons competent; except against decedent. Affidavit to
n»n account entitles to Judgment, unless defendant denies under
°?th Warehouse receipts and bills of lading conclusive evidence in
of « bona fide holder that the property was received by the
Siuer. (See also Accounts and Affidavits.)
lTracutions in circuit court issue within twenty days after the
.iHmirnment of court unless otherwise ordered by the plaintiff, and
fniiistices courts after the lapse of ten days from judgment rendered,
recovering party makes affidavit that he is in danger, h y delay,
^Hnsine his debt or demand, in which case execution issues forthwith.
N o 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- e^ents of a laborer necessary In his usual employment.
The books of a student required for the completion of his educaThe wearing apparel of every person.
.
, .
The libraries of all persons, including pictures, drawings, and paint­
ings not exceeding five hundred dollars in value; also the instruments
S 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
All globes and maps used by the teachers of schools, academies, and
°°TIuf following property of each head of a family, to be selected by
the debtor, Isexem pt:
Two work-horses or mules, and one yoke o f oxen.
Two head of cows and calves.
Ten head of hogs.
J
Twenty head of sheep and goats each.
jul colts *under three years old raised in this State by the debtor.
Two hundred and fifty bushels of corn.
Ten bushels of wheat or rice.
Five hundred pounds of pork, bacon, or other meat.
One hundred bushels of cotton seed.
One wagon, and one buggy or cart, and one set of harness for each.
Five hundred bundles of fodder and one thousand pounds of hay.
Forty gallons of sorghum or molasses or cane syrup.
One thousand stalks of sugar cane.
■
, .
,
One molasses mill and equipments, not exceeding one hundred and
Ofty dollars In value.
Two bridles and one saddle, and one side saddle.
One sewing machine.
,
.
. .
Household and kitchen furniture not exceeding in value two hun­
dred dollars.
All family portraits.
■ '
,
,
One mower and rake for cutting and gathering hay or grain.
And the following property shall be exempt from garnishment or
other legal process, to-wit;
. ,
..
The wages of every laborer or person working for wages, being tne
head of a family, to the amount of fifty dollars per month; but this
paragraph shall not apply to a debt for board and lodging or a Judg­
ment founded on a debt for board and lodging.
The proceeds of Insurance on property, real and personal, exempt
from execution or attachment, and the proceeds of the sale of such
P™aya£ie to Executor. Life insurance policy not exceeding five
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
oollect the same, the sum collected shall be deducted from the three
thousand dollars, and the excess of the latter only shall be exempt.
Life insurance policy to amount not exceeding $10,000.00 goes to parties
named as beneficiaries free from liability for debts o f insured.
Homestead In Country. Every citizen being a householder, and
having a family, shall be entitled to hold exempt the land and build­
ings 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 hav­
ing 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.
B , ,
No property is exempt as against purchase money or for labor per­
formed on it or material furnished therefor. M oney loaned at rates
of interest not exceeding 6 per cent is exempt from taxation.
Foreign C orp oration s may do business and sue and be sued_ as
in case o f domestic corporations. (See Corporations.) Foreign
corporations doing business in the State without recording their
charters are subject to fine; and all contracts are null and void.
Sales o f merchandise otherwise than in usual course o f business and
sales of entire stock o f goods in gross presumed fraudulent and void as
to creditors, unless 5 days before sale, seller make complete inventory
and the purchaser made demand o f seller for name, address and amount
of claim of each creditor, and the purchaser notified personally or by
mail each of creditors o f prased sale and o f cost price o f merchandise
and the price to be paid therefor.
_
^
In case of destruction o f stock o f merchandise by fire, on which there
Is insurance, holder o f policies to notify creditors he owes for merchan­
dise of his loss and amount o f insurance carried, within 5 days.
Fraud and F ra u d u len t C on v e y a n ce s. (See Attachment, Bills
of Lading, Limitations, Creditor’s BUI.)
G arnishm ent on judgments or in attachment. Binds debts or
property of debtor in garnishee’s hands.
Grace. Abolished.
Holidays are Jan. 1, Feb. 22, April 26. June 3. July 4, first Monday
m September, fourth Thursday in November, and December 25.
Instruments falling due on a holiday are 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 instru­
ments payable on demand might at the option o f the holder be pre­
sented for payment before twelve o ’clock noon on Saturday when that
day is not an entire holiday.
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 Exemp­
tions.)


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1627

H u sban d an d W ife. The disabilities of coverture are abolished,
as are dower and curtesy.. Husband and wife may contract with
and sue each other, but contracts for compensation for services ren­
dered 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 void as to third persons unless recorded, (oee
also Married Women, Wills, and Homestead.)
In s o lv e n cy . No general insolvent laws, but Insolvent estates of
__
decedents are divided among creditors pro rata.
In case of insolvency partnership property is applied first to partner­
ship debts, and e converso.
Interest. Legal rate 6 per cent per annum, and is exempt from
any taxes, but parties may contract in writing for 8 per cent, when
more is stipulated or collected all interest is forfeited. When above
20 per cent interest and principal forfeited and payments forfeited.
Ju d g m en ts 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 Judg­
ment creditors fail to issue executions and point out the property.
Lien of judgment continues seven years.
Ju risd iction . (See Courts.)
L iens. Lien of an enrolled judgment, of mechanics and material
men, o f landlord and laborer on agricultural products, innkeepers
and stablekeeper’s lien. The seller of goods may enforce lien 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 suit, stating that the purchase money Is unpaid.
A writ of seizure issues, and the goods are taken. Title to personal
property may be reserved by the seller as security for the price, and
this is good even as against a subsequent bona fide purchaser, with­
out any writing or record.
L im ita tion s. Open accounts, accounts stated, and verbal con­
tracts, 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. Aotlons 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. Action against administrator or
executor on claim against person deceased limited to 4 years from date
o f qualification o f such administrator or executor. Statute does not
apply to suits on notes or evidences o f debt o f 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 ror
assault, etc., until after release, nor against State, county, municipality,
or any political subdivision of State
M arried W om en retain their estate, common law disabilities of
coverture abrogated: have "capacity to make contracts and do ail
acts in reference to property
Dower and curtesy abolished. Hus­
band and wife must Join in conveying or encumbering homestead.
(See also Husband and Wife and Descent.)
M ortg ag es an d T ru st Deeds do not take effect as to creditors or
purchasers in good faith and without notice until they are d e liv e r s
to the clerk for record: with power of sale are foreclosed b y sale m
pals; without power of sale, by suit In chanceiy court, and after fore­
closure there Is no redemption. (See Chattel Mortgages.)
N otaries. Have power to administer oaths, take acknowledgments
ami to protest notes and bills. (See Conveyances.)
N otes an d Bills. Uniform Negotiable Instruments Law adopted
and now operative.
,
'
P artn ership. Few statutory provisions. Governed b y general
law. In case of insolvency, partnership Property must go to pay
firm debts, and e converso. Provision made for limited or special
partnerships.
Pow ers o f A tto r n e y . 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.
R e d em p tion . No redemption from sales under mortgage, execu­
tion, or other judicial sale. Two years allowed for redemption of
land sold for taxes, saving to minors and persons non compos menus
a like period after removal of disability.
. R ep lev in lies to recover personal property wrongfully withheld
from the owner. The property may be restored to defendant on bond.
If he declines to bond, plaintiff may do so. If neither does, a claimant
of the property may give the bond and receive possession. Damages
may be assessed for wrongful taking or detention.
T axes. Personal property is assessed once a year: real estate
every two years, and taxes constitute a prior lien. Land delinquent
sold on first Monday of April. Redemption within two years, on
payment of all taxes, costs, 25 per cent damages, and 5 per cent on
amount paid. Infants and persons of unsound mind may redeem
within two years after removal of disability, on paying the valile of
permanent Improvements put on the land after two years from date
of sale.
T ru st C om p an ies. Provision for such companies with general
powers— to administer all trusts, make bonds and the like. (See
Banks.)
W arehouse R eceip ts. (See Bills of Lading.)
WWt
W ills executed by anyone twenty-one years old, of sound mind.
As to land, if not wholly written and subscribed by testator, must be
attested by two subscribing witnesses. A nuncupative
P®*"
sonalty) may be made during last sickness of testator at habitation,
or wherè testator has resided ten days next before death, .o^'Jhere
person is taken sick from home and dies before return; must be proved
bv two witnesses. Nun-cupative wills not to be established where value
bequeathed exceeds $100.00. Soldiers and sailors in actual service may
bequeath personalty free from statutory restrictions. No restriction
upon the power to dispose o f 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 com ­
mon form may be contested within two years. One who kills another
cannot take under his will.

1628 i

B A N K IN G A N D C O M M E R C IA L L A W S — M IS S O U R I

S Y N O P S IS OF

THE LAW S OF MISSOURI
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
Prepared and Revised by Messrs. G a o s , L a d d & S m a l l , Attorneys at
Law, Kansas City. (See Card in Attorneys' List.)
A c k n o w le d g m e n ts. Acknowledgments of Instruments affecting
real estate may be before one of the following courts or officers. 1.
Within this State, some court having a seal, or some Judge, justice or
clerk thereof, a notary public, or some justice of the peace of the
county in which the real estate Is situated. 2. Outside of this State
and within the United States, any notary public, any court having a
seal or the clerk of such court, or commissioner of deeds. 3. Without
the United States, any court having a seal, the mayor pr chief officer
of any city or town having an official seal, any minister, consul or
officer, of the United States, or notary public having a seal. The
official should certify that “ before me personally appeared...................
a n d ........ ........... his wife, to me known to be the persons described in,
and who executed the foregoing Instrument ana acknowledged that
they executed the same as their free act and deed.”
A c tio n s. There is In this State but one form of civil action the
practice being under a code. A non-resident plaintiff must file the
written undertaking of some resident for costs.
A d m in is tra tio n o f E states. The probate court In each county
has jurisdiction of the settlement of the estates of deceased persons.
Claims presented to the court for allowance within six months after
the grant of letters are preferred over those presented later. Claims
not presented within one year from the granting of letters are barred.
Letters ajre granted: 1. To the husband or wife. 2. To those
entitled to distribution, or one or more of them. If after the expira­
tion of thirty days after death of deceased, such persons do not, on five
days’ notice, appear and qualify, letters may be granted to any other
person. Non-residents cannot be executors or administrators, nor
may non-resident executors or administrators maintain an action In
this State.
A liens. Aliens or alien corporations may not acquire, hold or own
real estate except such as may be acquired by Inheritance or in the
ordinary course of justice in the collection of debts. Real estate
acquired by an alien creditor at foreclosure sale must be disposed of
within five years.
A rb itra tio n . Parties to a controversy may submit the same to
arbitrators, and their award be confirmed by a court and judgment
rendered thereon.
A rrest. No person can be arrested under civil process.
A ssig n m e n ts. Voluntary assignments must be for the equal
benefit of all the creditors of the assignor and are administered in the
circuit court. No such assignment operates as a discharge of the
assignor from his debts.
A tta c h m e n ts. The writ may issue when the debtor is a non-resi­
dent; or conceals himself so that the ordinary process'of law cannot
be served; or, has absconded or absented himself from his usual place
of abode in this State, so that process cannot be served; or, is-about to
remove his property out of the State with tntent 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 seoretly removed his property into this State; or, where
the damages sued for arise from the commission of a felony or mis­
demeanor or the seduction of a female; or, the defendant is a corpora­
tion whose chief office or place of business is out of this State. The
plaintiff, his agent, or attorney, must make affidavit to one or more of
these grounds, and the plaintiff, except where the defendant is a non­
resident, must give bond for double the amount of the debt.
B an ks 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 o f 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,
ate 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 bank com­
missioner. Private bankers must have a paid-up capital of not less
than $10,000. and in cities of 150,000 population or more, not less than
$ 100 , 000 .

!

Every firm or individual as well as every corporation that engages
in the business o f banking shall be subject to the strict supervision of
the State Banking Department.
C o n d itio n a l Sales of personal property, unless recorded, are void
as to subsequent purchasers in good faith and creditors.
C onveyan ces. A person may convey title to lands although not
in possession, and although the same be in adverse possession. The
signature o f the grantor in a deed need not be attested by a subscrib­
ing witness. A deed by a natural person need not be under his seal.
The corporate seal must be affixed to deeds o f corporations. The
use o f the word “ heirs” in a -deed is not necessary to create a fee
simple. The statute abolishes estates tail and converts an estate
tail into a life estate for the first taker with remainder in fee simple
to the; heirs o f his body. The words “ grant, bargain and sell” are
employed in the granting clause o f a warranty deed; by statute those
words constitute express covenants that the grantor was seized o f an


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indefeasible estate in fee simple; that the real estate was free from all
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 anrt
his heirs. Title, subsequently acquired by the grantor in a warrant?
deed, will immediately pass to the grantee without further convey­
ance. An estate of freehold may be made to commence in future
by deed. An interest in real estate, granted or devised to two or
more persons, other than executors or trustees, or husband and wife
is a tenancy in common unless expressly declared to be a joint tenancv
A conveyance to husband and wife creates an estate in entirety as
at common law. Females of eighteen years are considered of ’full
age for the purpose of conveying real estate.
C orp oration s are formed under general law. in the case of manu­
facturing and most other business corporations, the capital must ha
not less than $2,000 nor more than $500,000,000. One-half must be
subscribed and actually paid up in money or property of the full
value thereof, if part of the capital stock is paid in property, there
must be an itemized description, the actual cash value of each item
being shown. Part of the stock may be preferred, paying not toexceed 6 per cent annual dividends. Cumulative voting is permitted
Directors must not be less than three nor more than twenty-one1 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
Amount o f the bonded indebtedness cannot, in any event, exceed the
amount o f the authorized capital stock.' The bonded indebtedness
cannot be increased nor the capital stock increased or diminished
except with the consent o f persons holding the larger amount in value
o f the stock. Two-thirds in value o f the stock may apply to the cir­
cuit court for a decree for the winding up o f the business. The
General Assembly o f 1913 enacted what is popularly known as a
“ blue sky law,” placing under strict supervision of the Bank Com­
missioner, corporations and partnerships carrying on the business of
selling and negotiating stocks, bonds and securities (a few securities
excepted). .
Ample powers of visitation and summary action are conferred upon
the Bank Commissioner, and penalties of fine and imprisonment
imposed for violation of the law.
A foreign corporation must file In the office of the secretary of state
a copy of its charter with a statement of the proportion of its capital
stock invested in Missouri and pay certain fees. It then receives a
license to do business in the State. It must also maintain an office
in the State. Its personal property in this State may not be incum­
bered to the Injury of any creditor who is a citizen of this State, and
no mortgage by a foreign corporation except a railroad or telegraph
company, to secure a debt created in another State is effective as
against any citizen of this State until its debts, due to resident citizens
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
outside of the United States before being authorized to transact busi­
ness in this State must have a public office in the State, where books
shall be kept, showing in detail its assets and liabilities, the names
and residences of its shareholders, officers, directors, and managers.
None of these requirements apply to insurance companies.
C ourts. Circuit courts have original jurisdiction in all cases of law
and equity and hold two or more terms in each year in each county.
Jurisdiction of the settlement of estates of deceased persons is vested
In a probate court in each county. Justices of the peace have juris­
diction limited to $250; in townships having 200,000 and less-than
400,000 inhabitants the jurisdiction is $500. Appeals lie from judg­
ments of justices and the probate court to the circuit court.
D ays o f G race are abolished. (See Negotiable Instruments.)
D ep osition s. May be taken on notice of at least three days and
one day additional for every fifty miles of the first 300 and beyond that
one additional day for each 100 miles from the place of serving the
notice. If taken outside of the State a commission issues from the
court in which the suit is pending. They may be taken within
the State by any Judge, justice of the peace,notary public,clerk of a court,
mayor or chief officer of a city or town having a seal of office; and if out
of the State by any officer appointed by apthority of the laws of this
State to take depositions, a consul or commercial representative ol
the United States having a seal, or mayor of any city or town haying a
seal, or any judge, justice of the peace, or other judicial officer, or a
notary public/ j They may be taken upon written interrogatories, but
this is not customary. The names of the witnesses or of the officer
need not be mentioned in the notice. Objections to the competency
or relevancy of the testimony need not be noted, but can be first made
when it is offered at the trial.
D escen t an d D istrib u tion o f P rop erty . The real and personal
estate of an intestate descends and is distributed as follows: 1. To
his children or their descendants In equal parts. 2. If there be no
children or their descendants, then to his father, mother, brothers,and
sisters, and their descendants in equal parts. 3. If there be no chil­
dren or their descendants, father, mother, brother or sister, nor their
descendants, then to the husband or wife; If there be no husband or
wife, then to the grandfather, grandmother, uncles aDd aunts, ana
their descendants in equal parts. 4. If there be no children or their
descendants, father, mother, brother, sister, or their descendants,
husband or wife, grandfather, grandmother, uncles, aunts, or their
descendants, then to the great-grandfathers, great-grandmothers, and
their descendants, in equal parts, and so on, in other cases without end
passing to the nearest lineal ancestors and their children, and their
descendants in equal parts. Posthumous children inherit. When
there are collaterals of the half blood, they inherit half as much as those
of the whole blood. Lineal descendants in equal degree take per
capital: but where part of them are dead and part living, the issue ol
those dead take per stirpes. When a wife shall die without any child
or other descendants in being, capable of inheriting, her widower shall
be entitled to one-half the real and personal estate belonging to tne
wife at the time of ber death, absolutely, subject to the payment oi
the wife’s debts, and the widow takes a like share of the estate of her
husband on his death without lineal descendants. An illegitimate
child Inherits from Its mother, and vice versa. An Illegitimate child
becomes legitimate if the parents intermarry.
D ow er. Dower in real estate is as at common law, but the widow
has the right, at her election, to choose certain portions of her hus­
band’s estate 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.
E x ecu tion s. Unless motion for new trial Is filed within four day»
after judgment, execution Issues immediately. Real estate must dc
sold during a session of the court which rendered the judgment, bales
of real estate must be advertised for twenty days; of personal property
for. ten days. Execution sales are for cash. No execution is a uen
upon personal property until actual seizure thereof. It may issue ax
any time within ten years from the rendition of the judgment, ueeas
to the purchaser are made at once by the sheriff, no confirmation oi
sale being required.
E x em p tion s. The homestead of the head of a family is exempt’
in the country to the extent of 160 acres not exceeding in value
in cities of 40,000. eighteen square rods, not exceeding in value
in cities of 10.000. thirty square rods- not exceeding in value $1.5uu. m

B A N K IN G A N D C O M M E R C IA L L A W S — M O N T A N A
towns of less than 10*000, ten acres, not. exceeding In value $l,50u.
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,
i 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
hooks used in the family. Lawyers, physicians,, ministers, and
teachers have the right to select professional books In lieu of other
oroperty allowed to them and doctors may select medicines. In lieu
of oertain of the exempted articles any other property, not exceeding
$300 In value, may be selected.
Frauds and P erjuries. No executor or administrator Is bound by
his promise to pay any debt or damages out of his own estate, and no
person Is liable upon any agreement to answer for the debt, default, or
miscarriage of another, or made In consideration of marriage, or for
the sale of lands or any interest in or lease thereof for a longer time
than one year, or on any agreement that is not to be performed within
one year unless the agreement sued on, or a memorandum thereof,is in
writing signed by the party to be charged or his authorized agent; and
no contract for the sale of lands by an agent Is Valid unless the author­
ity of the agent is In writing. Every gift, conveyance, or assignment
of or charge upon real or personal property made with Intent to hinder,
delay, or defraud creditors or defraud or deceive persons who shall pur­
chase the same lands, is void against creditors and purchasers, prior
and subsequent. The disposition o f the larger part or the whole o f a
stock of merchandise pertaining to vendor's business otherwise than
In the ordinary course o f trade, is fraudulent and void as against credi­
tors of the vendor, unless the vendee shall, at least seven days before
the sale furnish to the creditors a statement o f the consideration for
the sale, the amount o f the indebtedness o f the vendor, and the names
of his creditors. All creations of trust in lands must be in writing
except those resulting by implication of law.
Garnishm ent. Garnishees may be summoned under writs of
attachment or execution. A garnishee may discharge himself by
delivering up the property or paying the debt to the officer under order
of court. Credits or property attached in the hands of a garnishee
may be claimed by a third person, who may assert his title by inter­
pleader. Not more than 10 per cent of the wages due for the last
thirty days’ service of the head of a family and resident of this State
can be garnished. Public corporations and their officers are exempt
from garnishment, as are also administrators and executors prior to
an order of distribution.
Holidays. January 1, February 22, M ay 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 o f
them fall on Sunday, the next day is such holiday. February 12,
known as “ Lincoln D ay” and October 12, known as “ Columbus D ay”
are also holidays, but are not such as respects commercial paper.
Husband and W ife. (See Married Women.)
Interest. Legal rate 6 per cent, but by agreement in writing any
rate not exceeding 8 per cent. The legal rate is collectible on moneys
after they become due; on written contracts or accounts, after due
and demand made; on money recovered for the use of another and
retained without the owner’s knowledge. If usurious Interest has been
paid that part in excess of the legal rate is deemed payment and credit­
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. Part­
ies may contract that interest may be compounded, but not oftener
than once in a year.
Judgm ents. Judgments and decrees rendered by a court of record
are liens on the real estate of the person against whom they are rend­
ered situate in the county for which the court is held. Transcript of
a Judgment filed in the office of the clerk of the circuit court of any
other county becomes a lien upon real estate in such county. The
lien of a judgment continues lor three years, and may be revived at any
time within ten years from Its rendition. Execution may issue at
any time within ten years from the rendition of a judgment. When
two or more judgments are rendered at the same term as between
parties entitled to the judgments, the liens commence on the last day
of the term at which they are rendered. Judgments bear interest at
6 per cent, but if upon contracts bearing more than 6 per cent, the
judgment bears the rate of the contract.
Liens. Statutory provisions exist for mechanics’ liens, liens of
keeping horses and other animals, liens of inn and boarding-bouse
keepers, liens of contractors, material-men, and laborers against
railroads.
.
Lim itations. Actions must be commenced within ten years:
i. Upon any writing for the payment of money or property. 2.
on any covenants of warranty or seizin contained in any deed, 8.
jor recovery of lands. 4. For relief not otherwise provided for.
Within five years: 1. Upon contracts, express or implied, except
judgments or decrees o f court. 2. Upon a statutory liability other
than a penalty or forfeiture. 3. Trespass. 4. Replevin, and for
any other injury to the person or rights of another not arising on con­
tract and not otherwise enumerated
5. For relief on the ground of
fSW-t within three years: 1, Against public officers for acts of
omcial commission or omission. 2. For a penalty or forfeiture where
tne action is given to a party or a party and the State. W ithin two
¡rears: Actions for libel, slander, assault, battery, false Imprisonment,
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 o f his absence is not
wanted. Acknowledgments or promises, to take a case from the
!n, ai on °* t*le statute, must be in writing. Judgments are pre?*™ed 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.
lim ite d P artn ership. May consist of one or more general and
«on or more special partners. Special partners contributing a specint (+Smount *n cash t0 the capital are not personally liable for the debts
w»rffiej PartnershlP and have no power to transact its business. A
tv!* Qe<1 8tatement of the terms of the partnership must be filed with
recorder of the county. There can be no limited partnership for­
me Business of insurance or banking.
.„p a rried W om en . A married woman is deemed a femme sole so
;ar as to enable her to carry on or transact business on her own account,
haw« p Ct anc* he contracted with, to sue and be sued, to enforce or
f n r n r <lreed against her property such judgments as may be rendered
her, and may sue or be sued at law or in equity, with or
her husband being Joined as a party. Her real estate and
o f P r°Perty cannot be taken by any process of law for the debts
«»tat« uusband. Neither the rents, issues, or products of her real
naif k’ *?or the interest of her husband in her right in any real estate,
oan be levied on for his debts.
Ti.M®rtSages. Mortgages on real estate are executed like deeds.
gscSw # aiN wife must join to bar dower or homestead, except to
is » fi, p!u‘chase money. The common form o f real estate security
tho Jr,6 ■ °* trust with power o f sale in the trustee upon default in
e Payment o f the debt. Sale is at public auction, upon twenty


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1629

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 within one year if he gives written notice at
the sale or within the preceding ten days o f his purpose, and within
twenty days after sale give security for paymént of interest to accrue
within the year and all interest on prior- incumbrances paid by the
creditor and taxes and assessments accruing during the year. Evi­
dences o f debt secured by mortgage or deed of trust must be produced
to the recorder when satisfaction is entered. N o foreign corporation
or individual may act as trustee in any deed o f trust unless there be
named as co-trustee a Missouri corporation or individual citizen o f
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 samè 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-residenl of the
State, then In the office of the recorder of the county in which the
property is situated. Every such mortgage ceases to be valid after
the expiration of five years from the filing of the same.
N egotia ble In stru m en ts. The Général 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.
P ow er o f A ttorn ey . An Instrument of writing containing a power
to do any act or business, including the conveyance of real estate, as
agent or attorney for another, when acknowledged In the same form
as required for deeds, may be read in evidence without further proof
of its execution.
P rob ate L aw . (See Administration of Estates.)
P rotest. (See Negotiable Instruments.)
R ep lev in . Goods or chattels wrongfully taken or retained may be
replevied by the owner or party entitled to possession. Affidavit
must be filed and bond in double the value of the property given. In
certain cases defendant may retain possession of the property by giving
a bond In double its value. If plaintiff fail in his suit, defendant
recovers judgment against plaintiff and the sureties on the bond for
the value of the property and damages.
T axes. State and county taxes are usually paid in November
or December. If not paid, they are regarded as delinquent from the
first day of the succeeding January. State and county taxes for each
year are a lien upon the real estate from the first day of June of the
preceding year. Delinquent state and county taxes are collected by
suit. Municipal taxes are payable according to the provisions of the
charters or general laws by which they may be governed. In some
cases the payment of delinquent City taxes may be enforced by a sale
of the property without suit; in others, suit must be brought before
sale can be made. There is po redemption from a sale under a Judg­
ment for state and county taxes. Redemption is usually allowed in
a sale for city taxes under the provisions of the particular charter.
W ages. (See Garnishments; Exemptions.)
W ills. 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, sighed by the testator or some person by his
direction in his presence, and must be attested by two or. more com­
petent witnesses subscribing their names to the will in the presence of
the testator. If after making the will the testator shall marry and die
leavlng issue of the marriage living at the time of his death, or born to
him after his death, the will shall be deemed revoked. The will of an
unmarried woman is revoked by her subsequent marriage. If a child
or children, or the descendants of such child or children, in case of
their death, are not named or provided for in the will, the testator is
deemed to nave died intestate as to such child or children or their
descendants. Wills miist be presented for probate to the probate
court of the county in which was the place of abode of the testator.
Wills may be contested within two years after the probate thereof by
petition to the circuit court of the county. Real estate in this State
may be devised by last will executed and proved according to the laws
of this State. Personal estate may be bequeathed according to the
laws of the state or country in which the will shall be made.

S Y N O P S IS OF

THE LAW S OF MONTANA
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
Revised by W ight and P ew .
Attorneys at Law, Helena.
A bstracters. Must give $5,000.00 bond to state and shall receive
certificate from State Treasurer authorizing him to do business.
Abstract furnished by authorized abstracter admitted in court has
prima facie evidence of contents.
A c k n o w le d g m e n ts of instruments may be taken In this State.
1. Before supreme court Justice, district judge, justice of the peace,
clerk Of any court o f record, county clerk, notary public, or U. S. Com­
missioner. 2. Outside Montana in the United States. Before the
justice, judge, or clerk o f any court of record o f the United States or
any state Or territory; a commissioner appointed by the governor for

1630

B A N K IN G A N D C O M M E R C IA L L A W S — M O N T A N A

that purpose, a notary puolie, or any other officer authorized to take
acknowledgments. 3. Outside United States before minister, com­
missioner or chargé d ’affaires, consul, vice-consul or consular agent o f
the United States, a judge o f court o f record, commissioner appointed
by governor or notary public. In all cases acknowledgment must be
taken within jurisdiction o f officer taking.
Must be in substantially following form : “ State of ................. ..
county o f ...............s. s. On this . . . . . . day o f ........... 1 9 0 ... before
(name and quality of officer) personally appeared ............... known
to me (or proved on oath o f ...........to be the ‘ person whose name Is
subscribed to the Within Instrument, and acknowledged to me that
he (or they) executed the same.” Same for married women. In
case o f corporation same to star, then “ president or vice president
(or secretary or assistant secretary) o f the corporation that executed
the within instrument and acknowledged to me that such corporation
executed'the same,” and in case o f attorney in fact, “ whose name is
subscribed to the within instrument as attorney in fact o f .........................
and acknowledged to me that he subscribed the name o f .......................
thereto as principal, and his own name as attorney-in-fact.” Outside
o f county must be accompanied by certificate o f county clerk.
A d m in is tr a tio n o f E state is had in district courts. Notice to
creditors published four weeks. Claims not presented In four month?
after first notice, if estate $10,000 or less, or ten months If over
$10.000, are barred.
Letters o f 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.
A ffid a v its may be taken or oaths administered before any judicial
officer, clerk o f any court, county clerk or notary public In this State;
in any other statç before a commissioner appointed b y the governor,
notary public, or judge or clerk of any court of record having a seal;
la a foreign country before an ambassador, minister, consul, viceconsul, or consular agent of the United States, or judge of a court of
record having a seal.
When taken before a Judge in any other state or foreign country,
the existence of the court, signature and official character of the judge
must be certified by the clerk of such court, under its seal.
A lien s a n d D en izen s have same right as citizens to acquire, use
and dispose of mining property and real estate in connection there­
with.
A rb itra tio n . 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 o f 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.
A ssig n m en ts. 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 undèr partial
supervision of the district court.
A tta c h m e n ts. W rit of may be had at the time of Issuing sum­
mons or any time thereafter in actions upon unsecured contracts
express or implied for direct payment of money; or if contracts origi­
nally secured, when security has become worthless without plain­
tiff’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 per­
sonal. or debt due from or money or personal property held by third
person, Including judgments, may be attached.
B an k s. No special provisions regarding national banks except
that all banks, organized under laws o f this State or the United States,
shall be taxed for vàlue o f its stock in county, town, city or district
where located and not elsewhere, regardless of residence of stock­
holders.
Banks of discount and deposit, incorporated under laws of Montana
tor 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 o f 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,
©r in realizing upon securities. Directors must declare semi-annual
dividend out o f net earnings, and at same time make report to State
auditor of assets and liabilities, and publish once. Stockholders are
liable for banks* debts to extent o f stock held b y them. Their
liability continues six months after a transfer o f the stock. Failure
to comply with requirements for sixty days forfeit franchise.
The total liability of any person, firm, corporation, or company to
any such bank for money borrowed shall at no time exceed fifteen
per cent of paid in capital and permanent surplus; this does not apply
to discount of bills of exchange drawn upon existing values or of com­
mercial paper owned 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 employée, 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 applica­
tion, 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
he subscribed in cash before beginning business. May do a general
deposit and loan business. Stockholders liability to same extent as
in other banks.
Foreign banking corporations may establish branch banks in this
State upon compliance with certain special laws.
Bank is not liable for payment of forged or raised check, unless
claim is made within one year after check Is returned paid to deposi­
tor. (Session 1909.) Liable for non-payment o f check without
malice only to amount o f damages proven.
C on tra cts. Contracts o f conditional sale retaining title in vendor
must be filed with county clerk or are void as to bona fide purchasers,
mortgagees or attaching creditors prior to filing
C o n v e y a n ce s. Title to property o f any kind (except a mere pos­
sibility not coupled with an interest), including a right of re-entry for
breach of condition subsequent, and property in the adverse possession
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


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Federal Reserve Bank of St. Louis

a grant, unless expressly limited to a less title in the deed pn,,.
nants that the grantor has made no previous deed to any other nw
son, and that the premises are free from incumbrance by the grant«»
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 proDertv
may, if acknowledged, be rerorded, and such record Imparts notiM
to the world. (See Acknowledgments.)
uouce
C orp ora tion s are formed under the general statute, except bank­
ing, insurance and railroad corporations, and corporations not for
profit, which are governed by special laws. Stockholders have one
vote for each share, may vote In person or by proxy, and may cumu.
late votes in director elections. Articles of incorporations filed in
county where principal office located, and copy filed with secretary of
State; many hold only necessary real estate; from three to thirteen
directors, who may be empowered to make by-laws; may classify
directors; 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 mav
examme books; written transfer or power o f attorney to sell and
delivery o f certificate passes title, between parties and against creditors*
may be attached on books o f corporation. Every domestic corpora^
tion having a capital stock must file report in county clerk’s office
within twenty days after December 31st o f each year, showing amount
o f capital stock, amount paid in cash, and amount paid in property
amount o f existing debts, and names and addresses o f directors, presi­
dent, vice-president, general manager and secretary; directors neglect­
ing 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. Subject to State tax o f one per cent on net income over
$ 10 , 000 .

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 prooess
and acceptance o f same. M ust pair to Secretary o f State filing fees
upon proportion o f business and assets in Montana to total business
and assets o f corporation. I f capital increased or diminished must file
certificate thereof with secretary o f state and county clerk, and refusal
to do so forfeits right to do business in State. M ust 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 domestie
corporations and their stock is made attachable in this State. (Ses­
sion 1909.) M ay be served, if no officer, agent or other representa­
tive can be found in Montana, by leaving process with Secretary of
State. (Laws 1917.)
Foreign incorporations subject to State tax o f one per cent on nei
income over $10,000.00 on business done in Montana. (Laws 1917.)
C ou rts. District courts have original jurisdiction in law and
equity where over $50 involved;'have probate and criminal juris­
diction. City police courts of petty criminal jurisdiction. Justices
of peace limited to $300, petty criminal cases; cannot try title to land,
nor questions of constitutionality. Appeals lie from justice to dis­
trict and from district to supreme court. Supreme court appellate
court of last resort, except has original jurisdiction in applications tor
habeas corpus and similar writs.
D ays o f G race.
None.
D ep osition s of resident may be taken when witness Is a party In
interest, or resides out of the county, or is about to leave and will
probably continue absent, or is too infirm to attend; or the testimony
is to be used on a motion, or when witness Is only one who can estab­
lish a material fact and his presence cannot be procured at the trial.
Examination may be upon oral questions or by agreement upon
written Interrogatories. In case of non-resident within United States,
judge may issue commission upon five days’ notice, if parties do not
agree upon person, to any judge, or justice or commissioner. If oat
o f United States, may be directed to a minister, embassador, consul,
vice-consul or consular agent of the United States in such country,
or to such person as may ‘ be agreed upon. Examination of non­
residents unless otherwise agreed, must be by written interrogatories.
D escen t. Intestates’ real and personal property, subject to pay­
ment of debts, descends as follows: If widow or surviving husband
and one child, half to each; if widow or surviving husband, and more
than one child or one child and lawful issue of one or more deceased
child, one-third tp husband or wife and two-thirds to such children
and issue per stirpes; if no child living, two-thirds to lineal descend­
ants, equally if of same degree. If not, per stirpes; if Issue and no hus­
band 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 brother
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 ana
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 o f person who acknowl­
edges himself, in writing before a competent witness, to be its- father
and is an heir of his mother; if parents intermarry, is legitimatized.
D ow er. Curtesy abolished. W ife 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 b y 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 eject
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 oi
debts, if she elect within two months after payment of debts, a
woman may be barred of dower by jointure with her assent before
marriage, consisting of freehold in lands of life, at least, beginning a*
death of husband. Dower is not affected except by wife’s deed.
E x e cu tio n unless stayed by order of court, may issue at once upon
rendition of judgment; becomes lien on personalty upon seizure oy
officer holding writ. All property sold to highest bidder Defendant

B A N K IN G A N D C O M M E R C IA L L A W S — M O N T A N A
. oredltor may redeem from sale of real estate within year, or sixty
days after previous redemption.
exem p tions. To bead 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
nrovisions for three months; forty-five 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 o f 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 false warehouse receipts or to
wrongfully remove or dispose of any property for which a warehouse
receipt has been issued; for the mortgagor to dispose in any manner
of any property covered by chattel mortgage. Any negotiable instru­
ment procured by fraud or circumvention to be executed Is void even
In hands of innocent holder.
Frauds, S ta tu te o f. Agreement o f 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 o f 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 represen­
tatives 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 an d W ife . Husband must support wife if able; it not,
she must assist; husband has no curtesy; wife has dower; neither
caU 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 o f
wife is her separate property, and she can convey, or execute power o f
attorney thereon without husband’s consent. Her deed must be
acknowledged. Filing inventory o f her personal property exempts
same from claims against husband, except for necessaries for herself
and her children. W ife must support husband out o f her property
if he is infirm. Wife may dispose o f her property b y will* except that
such will must not, without his written consent, deprive husband of
over two-thirds o f her real estate or two-thirds o f her personal property;
wife may make contract, etc., the same as though smgle. I f husband
neglect to support his wife, bills for necessaries sold her can be collected
from him, but not when separated b y consent, unless support stipu­
lated in such agreement.
Interest. Eight per. cent on Judgments and damages. In other
cases 8 per cent in absence o f agreement. M ay contract for not more
than 12 per cent per annum.
Judgm ent of courts o f record (including federal oourts 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 subjeot to lien upon filing of transcript of judgment in such county.
Abstract of justice court judgment becomes lien on realty In any
county where filed in district court.
Liens. Laborers and materialmen have lien, for labor or material,
on property. Must file in 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 suoh house. One performing service with respect to personal
property. Including feed and care of animals, has a lien upon such
personalty or animals. Person furnishing another seed grain has lien
upon crops produced thereby up to 700 bushels, to secure payment o f
purchase price. Verified, lien must be filed in the office o f the Clerk
and Recorder. Such lien is prior to all other encumbrances.

Threshermen have lien upon crops threshed for services in threshing
subject only to seed lien. Verified lien must be filed in the office
of the Clerk and Recorder.

Lim itations o f A ctio n s. Action upon judgment of any cou:
record, action to redeem from mortgage when mortgagee Is In posseL
slon,. ten years: actions for recovery of real estate or mesne profits
tbereof, 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 in writing,
eight years; to establish lost, concealed, or destroyed will, or upon a
Judgment of a court not of record, five years; against sheriff, coroner,
or constable for breach of official duty, action for damages for wrongful
death, or for obligation not in writing, other than a contract, account
or promise, three years; upon statutory liability, for waste or trespass,
detainer of or Injury to chattels, for relief on ground of fraud or mis­
take, or for libel, slander, assault, battery, false Imprisonment or
seduction against a railroad for killing or injuring.livestock, two years.
Against a sheriff or other officer for escape o f civil prisoner; against
municipality for violation o f ordinance, against officer for money or
property .taken as such, one year; to recover stock sold for delinquent
assessment, and actions against a county after rejection o f claim by
county commissioners, six months.
All cases not specifically mentioned; five years. Statute does not
run during absence of defendant from this State.

Loans. Farmers loan department established.
Married Wom en. (See Husband and Wife.)
M ortgages of real estate are executed same as deeds. Husband
«mo wife must Join to bar dower or homestead, except purchase money
f?ortgages. Non-judicial sale under power valid. Lien good for
fi,? •3J®ars after maturity o f debt, and may be renewed by affidavit
¡9” mgbt years more. As to any mortgage now existing as to which
fUjUt years or xnore has elapsed same may be renewed for eight years
oy Hung affidavit in six months from February 17, 1913.


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1631

Chattel mortgage must be duly acknowledged, and be accompanied
b y affidavit of mortgagee that same is made in good faith and not to
hinder, delay, or defraud creditors; not valid except between parties
until filed in county where property is situated. Lien good until
maturity o f debt not exceeding two years and sixty days. M ay be re­
newed by filing affidavit within sixty days after expiration o f two
years, stating amount still due, and alleging good faith, etc.
N eg otia ble In s tru m e n ts. Must be payable in money and must
contain an unconditional promise to pay a sum certain on demand or
at a fixed or determinable future time;must be payable to order or
to bearer; may be in installments and contain provision that on any
default the whole shall become due; with exchange fixed or current
rate, interest and attorney’s fees for collection may authorize sale
of collaterals and confession of judgment; if it reads “ I promise to
pay” all signers are jointly and severally liable may be payable at
fixed time after date or sight, or after specified certain event, but not
upon a contingency; need not specify value given nor place where
drawn or payable; if issued, accepted, or endorsed when overdue it is
payable on demand; may be payable to two or more payees jointly,
or one or more of several payees; absence or failure of consideration a
.defense against one not a holder in due course and partial failure a
vdefense 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 cir­
cumvention 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 pre­
sented on day it falls due, if on demand then within a reasonable time
after its issue, except a bill of exchange must be presented* within
reasonable time after its last negotiation.
Alterations. Fraudulent or material, do not affect original instru­
ment in hands of innocent holder in due course.
Acceptance. Unconditional promise in writing to accept a bill
before or after drawn is good in favor of all who take It upon faith
thereof for value. The holder may decline a qualified acceptance and
treat the bill as dishonored; if he takes qualified acceptance drawer
and endorsers are discharged, unless they consent thereto.
Protest, of foreign bills may be made by notary public or by any
respectable resident of the place in presence of two or more credible
witnesses; bill of exchange does not operate to assign funds in hands
of drawee and he is not liable unless he accepts.
Promissory Note. Must be unconditional promise in writing to
pay on demand or at fixed or determinable, time a sum certain in
money to order or bearer, and where drawn to maker’s own order Is
not complete until endorsed by him; may be in installments.
A Check is a bill of exchange on a bank payable on demand; must
be presented within reasonable time after issue and if dishonored
notice must be given or drawer is discharged to the extent of loss
caused by 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 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.
R ep lev in . The plaintiff In an action to recover possession of per­
sonal property may replevy the same at the time of issuing summons
or at any time before answer, upon making affidavit showing that the
plaintiff is the owner of the property or entitled to possession thereof;
that it is wrongfully detained, and has not been taken for a tax,
assessment or fine pursuant to a statute or seized under an attachment
or an execution against the plaintiff; or if so seized that it is exempt;
and also stating the actual value of the property. A demand for the
delivery of the property should be indorsed upon the affidavit and an
undertaking in double the value of the property must- be given.
The defendant has two days In which to except to plaintiff’ s sureties,
or he may require the return of the property by giving an undertaking
in double the value of the property. If such undertaking is not given
within five days from the replevy the property must be turned over
to the plaintiff.
T axes. 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, ana In not less than twenty-one ana not
more than twenty-eight days after the first publication sale of the
real estate is made, subject to redemptiion 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
dqed at the find of the thirty-six months but must give thirty days’
|wner or occupant of the property. Taxes are assessed
whose name the property stands of record on the first
___________ jc h of each year. An inheritance tax of $5 for every
$l(5<!PWS*BPproperty must be paid by anyone, not a blood relation,
inheriting' 8hch 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.]
W ills. Every person over eighteen years at 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 nun­
cupative 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 author­
ity. 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 six months after stating the testamentary
words unless the substance thereof was reduced to writing within
thirty days after they were spoken. A will executed according to
law of the State where the testator was then domiciled may be pro­
bated in this State.

B A N K IN G A N D C O M M E R C IA L L A W S — N E B R A S K A

1632

register of deeds office, and within thirty days It shall be recorded In
any other county where property conveyed be situated. A creditor
may file and prove a claim and concurrent therewith, may pursue a
separate remedy against the assignors for the collection of such claim
Conveyances, preferences, payments, pledges or transfers of property
made by an Insolvent debtor in contemplation of such Insolvency
within thirty days prior to making an assignment, are void, except
that the assignor may pay or secure clerks or servants’ wages, not
exceeding $100 to any one person, and may pay or secure any debt
created within nine months prior to that time and may secure any
debt contracted simultaneously with the giving of such security.
Assignments of wages o f head of family void unless executed and
acknowledged by husband and wife.

S Y N O P S IS OF

THE LAW S OF NEBRASKA
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
'Revised by Montgomery , H all & Y oung , Attorneys at Law, Omaha
(See Card in Attorneys’ List.)
A ck n ow led g m en ts. (See Deeds) may be made in this State
•before a notary, judge or clerk o f any court, justice of the peace,
county clerk or deputy, register o f deeds or deputy, .deputy clerk of
district or county court in name o f his principal, secretary o f state,
under seal, if the officer have one. I f acknowledgment taken in any
other state or territory, it must be in accordance with the laws of
this State or o f the state or territory where taken, and must be before
some court o f record or clerk or officer holding seal thereof, or a
commissioner o f deeds appointed by th.e governor o f this State for
that purpose, or notary public, or justice o f peace; if before Justice
of the peace, acknowledgment must be accompanied by certificate
o f his official character under hand o f clerk o f some court o f record,
to which the seal o f such court shall be affixed. If the officer have
no seal, then the acknowledgment must have attached thereto a
certificate o f the clerk o f a court o f record, or other proper certifying
officer o f the district or state where taken, under the seal of his
office showing that the person taking the acknowledgment was
at the date thereof, such officer as he is therein represented fco^be.
that he is well acquainted with the handwriting of such officer; that he
•believes \the said signature of the officer to be genuine, and that the
deed or other Instrument is acknowledged in accordance with the laws
o f such state, district, or territory. If acknowledgment taken in a
•foreign country, it may be acknowledged before any notary public,
minister plenipotentiary, extraordinary or resident, charge: d’affaires,
-commissioner, commercial agent or consul of the United States, in
.executing acknowledgment, notaries public must write in the date
when their commission expires or else said date must be imprinted on
their seals.
A c tio n s. Must be brought by real party in Interest, except as to
administrator, trustee, etc. However, assignees o f choses in action
assigned for purpose o f collection may sue on any claim assigned in
writing; but such assignees must give security for costs. Non-resident
plaintiff must give security for costs.
A d m in is tr a tio n o f E states. (See Decedents.) County courts
have exclusive Jurisdiction over estates. Administration is granted
to widow or next of kin, or both, or some one selected by them ; but if
unsuitable, or if they fall for thirty days after death of a party td apply
for létters, same may be issued to a creditor, or to some one selected
by thè Judge. Executors and administrators must give bond, as
required by the court, and must, within three months after appoint­
ment, make report of all property belonging to deceased. General
letters of administration are only Issued after due notice to parties
Interested, and if case is urgent a special administrator may be ap­
pointed. who shall make report within two weeks. Personally is dis­
posed of under direction of the county court, but to sell real estate,
license must be obtained from the district court. Debts of decedent
are a lien upon all real estate. If no administration within two years
any heir o f deceased or any person having acquired real estate from
deceased or heirs may obtain from county court determination of
heirs o f deceased degree o f kinship and right o f descent of real property
of deceased.
A ffid a v its. (See Depositions.) Affidavits may be made before
anyone authorized to take depositions, and must be subscribed in
presence of the officer and sworn to before him, and this fact must be
stated in the affidavit. If made out of State and the of^fcas Ipp” "I'vfeAU .
affidavit must have attached thereto a certificate of
reciting authority of such officer.
A llen s. Non-resident aliens and foreign c o r p o r a o w n
or hold real estate In Nebraska, but the widows and heirs of such aliens
who held lands prior to March 16, 1889. nave ten years to dispose of
their interests, and those who acquired their ownership prior to that
date may dispose of same during their life. If not so disposed of, the
lands escheat to the State. However, non-resident aliens may acquire
a lien upon real estate, ana, pursuant or subsequent to such, may purchase such real estate, but shall dispose of same within ten years from
1time of acquiring title. These provisions do not apply to railroads nor
to real estate upon which buildings are erected and maintained for
manufacturing purposes, nor to that within the corporate limits of
cities and towns. Allens who declare their Intention to become citizens
of the United States thirty days before an election, conformably to the
laws of the United States on subject of naturalization, are electors,
same as citizens.
A rb itra tio n . Instead of submitting a controversy to a court,
oarties may agree in writing to arbitrators, whose decision, alter confirmatioh by the court, shall stand as a verdict. Judgment may then
be entered and execution issued.
A rrests. Arrest and imprisonment in civil actions for debt are
^ A s s ig n m e n t s . (See Exemptions, Acknowledgments.) Every
assignment for benefit of creditors shall be made to the sheriff of the
county, and shall include all property of the assignor, except such as
may be exempt. Assignments shall be executed and acknowledged
the same as a deed to real estate, and within twenty-four hours after
its execution shall be filed for record in the county clerk s office, and
|f real estate is mentioned therein, it shall also be recorded in the


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A tta ch m en ts. The plaintiff at or after the commencement of an
action may have an attachment against the defendant’s property,
when the amount is due, by filing an affidavit showing any of the
following grounds: 1. That the defendant is a foreign corporation
or non-resident of the State. 2. Has absconded with intent to
defraud creditors. 3. Has left the county of his residence to avoid
the service o f summons. 4. So conceals himself that a summons
cannot be served upon him. 6. Is about to remove his property,
or a part thereof, out o f the jurisdiction of the court with the intent
to defraud his creditors. 6. Is about to convert his property, or
part thereof into money for the purpose o f placing it beyond the
reach o f his creditors. 7. 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 intent to defraud his
creditors. 9. Fraudulently contracted the debt or, incurred the
obligation for which suit is brought. The affidavit must further
show the nature o f plaintiff’s claim, that it is just and the amount
which affiant believes plaintiff ought to recover. N o undertaking is re­
quired where the defendant is a foreign corporation, or is a non-resi­
dent o f the State but in such cases no attachment can be had for claim
other than debt or demand arising upon contract, judgment or decree,
unless plaintiff has been bonaflde resident of state for six months
preceding filing o f petition. In all other cases plaintiff must give an
undertaking in double the amount of his claim. I f property cannot be
seized by the officer it may be reached by garnishment process. To
■obtain attachment in an action not founded on contract, original
petition must be presented to judge o f supreme, district or county
court who shall make an allowance thereon of the amount in value
of the property that may be attached, and the amount of bond, if
any, to be given by plaintiff.
B an kin g. Only National banks and state banks which are in­
corporated under the laws of Nebraska, can transact banking busi­
ness here. State banking board has general supervision and control
of all state banks. Every state bank must obtain charter from
this board. ' Board appoints examiners who investigate affairs
o f each bank at least twice a year. After each examination bank
must pay to state treasurer fee o f $15 to $50, according to capital,
not more than two fees in one year. Savings banks must have at
least $15,000 capital; if in city of 50,000 to 100,000, $35,000; 100,000
or more. $75,000. Other banks must have capital as follows: Mini­
mum $10,000; in town of 100 to 500, 15,000; 500 to 1,000, $20,000;
1 000 to 2,000, $25,000; 2,000 to 5,000, $35,000; 5,000 to 25,000.
$50,000; 25,000 to 100,000, $100,000; 100,000 or more,. $200,000.
Such capital shall be in money, credits.national, state, county or mun­
icipal bonds, bank furniture, and the bank building and ground on
which situated, which ground shall be unincumbered, but in no case
shall the bank building and ground, together with furniture and fix­
tures, exceed in value one-third or the furniture and fixtures alone
10 per cent or the national, state, county and municipal bonds oneof the half paid-up capital. Before commencing business the bank shall
make a detailed statement of the proposed business to the banking
board, which, after approval, shall issue a charter. Every bank must
make at least quarterly detailed reports under oath, showing the
amount loaned upon bonds and mortgages, amount loaned upon notes,
bills of exchange, overdrafts, and other securities, with the actua
market value thereof, the amount of rediscounts and of commercial
paper past due, the amount Invested In real estate, at cost, the amount
of cash on hand and on deposit in banks or trust companies, with Vu r
names and the amount deposited in each, and the amount of all other
assets, together with such other information as the banking board may
require. A summary of such report must be published in some local
newspaper and proof of such publication transmitted to the banking
board, and such board may call for special reports at anytime, r all­
ure to make reports entails a penalty of $50 for each day s delinquency,
and those making false statemepts in such reports or In the books of
the bank may be punished as felons. It Is likewise a felony for a bank
to receive moneys or permit same to be received on deposit when tnc
bank is Insolvent: to loan to an officer or employe of the corporation
without the approval of a majority of the directors; to carry as asseta
any note or obligation of the partnership, member thereof. or lndivldu
al, where such partnership or Individual do a banking business, to
permit shareholders, where the bank is a corporation, to become in­
debted in a sum exceeding 50 per cent of the paid-up capital of suen
bank. Every stockholder Is liable for debts accruing dming hu
ownership of stock, for an amount equal to the P a i d ^ P J ^ e o I !£®
shares held, and all shares of stock are assessed 1? the place where the
bank is located, whether the owners thereof reside tfiere or not. ano
taxes are a lien upon the stock. A guaranty fund
assessments on all state banks based upon the average daily deposits
.Claims of depositors and o f holders of exchange baw prtority dvw a
■ th er claims, except taxes, and, subject to taxes, are firstlien_on^au
K s e ts of bank when bank closed. Bank other than savings bank
shall not permit loans and Investments, exclusive of J ’Gsepj®Jf.fl
banking house and fixtures to. exceed ten times amount of capita
and surplus. All state banks in cities o f over 25,000 must keep a,
reserve of 20 per cent. Rediscounts and bills payable must not .ex
ceed paid up capital and surplus except for payment of depositors.
State banks and trust companies may become members of federal
reserve bank. It is unlawful to bid or solicit ^¿r purcha.
cfcuauy
stock above par until banking csrporation organized and actually
engaged in banking business.
B ills o f E x ch a n g e.

(See Notes and Bills of Exchange.)

B lue Sky Law. . (See Corporations.. /
B ulk Sales.

(See Sales.)

C h a ttel M ortg a g es. Every chattel mcftSa^e, if not accompanied
by an Immediate delivery of the goods and be folio'
? void as
and continued change of possession thereof, Is absolutely voi •
against creditors of the mortgagor and as against subsequen p
chasers and mortgagees in good fa lth ,^ le s s «uch mortgage. r a Py
thereof, be filed in the county clerk s office ^nere the mortgagor re
and if he be a non-resident, then t o M fc ^ e r k * ^ n h a tt e l mortgage
where the mortgaged property be situated. .&uch chattel
need not be acknowledged unless it c o n v e y h o u s e h o ld goods use ^ ^
the family by the husband and wife, or either. In which case u
,
signed and acknowledged by both husband and
®n
parties,
estate conveyances. . Verbal mortgages are gobd between the p a u i^
It is a felony to transfer or dispose o f pwsonal property m o ^ g ^
without procuring the consent of the mortgagee, or to e

BANKING AND COMMERCIAL L A W S — NEBRASKA
... of the county with Intent to detraud the mortgagee of his security.
Mortgagor required to give accounting for mortgaged property from
time to time an demand o f mortgagee, and to give mortgagee notice
in writing within 10 days after loss or death o f mortgaged articles
r f f j 5.'

(See Accounts, Administration o f Estates.)
(See .Licenses.)
Conditional Sales. A sale or lease of personalty may be made
«nd title thereto retained In the vendor until the purchase price be
iiiilv paid, or condition compiled with, by having the contract of sale
nr lease in writing signed by the vendee or lessee, and then tiling copy
nl same In the county clerk's office, with affidavit of vendor, his agent
or attorney attached thereto, giving names and full and true interest
of Darties and description of the property. Such sale or lease shall be
Invalid at expiration of five years as against purchasers In good faith,
or ludgment or attaching creditors, unless the vendor or lessor shall,
within thirty days prior to the expiration of the five years, repeat the
filing which must be made annually thereafter. These sales are valid
m between the parties and as against judgment or attaching creditors
and subsequent purchasers and mortgagees with notice.
Consignments. It Is a felony on the part of a factor or agent to
whom goods have been consigned to sell or assign such goods with
intent to defraud the owner. Is also a felony for the owner of goods,
after receiving an advancement upon the shipment, to sell or transfer
such goods contrary to the agreement between him and the consignee.
Contracts. Every contract for the purchase or sale of real estate or
any interest therein, except a lease for a period not exceeding one year
from, the making thereof, must be In writing and subscribed by the
oarty to be charged. Every agreement by Its terms not to be per­
formed within one year from the making thereof, every special promise
to answer for the debt, default or misdoings o f another, every agree­
ment promise, undertaking made upon consideration o f marriage,
except mutual promise to marry, and every special promise o f an
executor or administrator to answer damages out o f his own estate,
and every contract for the sale o f goods and things in action, for
the price of S50, or more, shall be void unless note or memorandum
be made In writing by the party to be charged thereby. If, however,
when contract for sale of goods and chattels of the value of $50 or
more is made, and a part of the purchase price thereof is paid, or a
part of the goods and chattels are delivered, to the buyer, no memoran­
dum Is necessary. (See Statute of Fraud.)
Conveyances. (See Deeds, Mortgages, Conditional Sales.)
Corporations. (See Foreign Corporations.) Any number o f per­
sons may associate and incorporate for the transaction of any lawful
business, Including the construction of canals, railways, bridges, and
other works of Internal Improvements. Every corporation, as such,
has power: 1. To have succession by Its corporate name. 2. To
sue and be sued, to complain and defend In courts of equity and law.
3. To make and use a common seal and alter the same at pleasure.
4, To hold personal estate and all such real estate as may be necessary
for the legitimate business of the corporation. 5. To render all
Interest of the stockholders transferable. 6. To appoint such
subordinate officers and agents as the business o f the corporation shall
require, and allow them a suitable compensation therefor. 7. To
make by-laws not Inconsistent with any existing law, for the manage­
ment of Its affairs. Every corporation previous to the commencement
of any business, except its own organization, when the same Is not
formed by legislative enactment, must adopt articles of lnfcorporation
and have them filed in the offloe of the secretary of state: and domestic
corporations must also file with the county clerk in the county where
their headquarters are located. Banking corporations and building
and loan associations must also file with State Banking Board. In-«
surance companies, holding companies and all companies under con­
trol of state auditor must also file with that department. The ar­
ticles of incorporation must fix the highest amount o f indebtedness
of liability to which the corporation shall, at any one time, be sub­
ject, which must in no case exceed two-thirds o f the capital stock.
(Exceptions made for insurance companies, deposits in banks, loan
and trust companies.) Must incorporate within one year after
organization, or power ceases. Notice must be published in some
newspaper near the principal place o f business, for four weeks. Such
notice shall contain: 1. The name o f the corporation. 2. ' The
principal place o f transacting its business. 3. General nature o f
the business to be transacted. 4. The amount o f capital stock author­
ized, and the time and conditions on which it is to be paid in. _ 5.
The time of commencement and termination o f said corporation.
6. Highest amount o f indebtedness or liability to which corporation
is at any time to subject itself. 7. By what officers the affairs of
the corporation are to be conducted. The notice required must
be published within four months from the time o f filing such articles.
Two-thirds o f its members may dissolve corporation unless other­
wise adopted in articles o f incorporation. Copy of by-laws o f the
corporation, with the name of all the officers appended there
must be posted in some conspicuous place at the place of doing busi­
ness, ‘ subject to public inspection. Shall give notice annually, in
some newspaper printed in the county or counties, or in State if
none in the county, o f the amount o f all existing debts o f the cor­
poration, 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 said notice
Is given, to the amount of the unpaid Individual subscription o f 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 secre­
tary of state, annually, before they may do business here. Annual
fees for such permit as follows based upon capital stock oi iimne
companies, or on that portion o f capital stock o f foreign companies
which represents Nebraska business: Capital o f $1,000 to $10,000,
fee of $5; $10,000 to $20,000, $10; $20,000 to $30,000, $15; $30,000 to
$40,000, $20; $40,000 to $50,000, $25; $50,000 to $60,000, $30;
$60,000 to $70,000, $35; $70,000 to $80,000, $40; $80,000 to $90,000,
$45; $90,000 to $100,000, $50; $100,000 to $125,000, $60; $125,000
to $150,000, $70; $150,000 to $175,000, $80; $175,000 to $200,000, $90;
$200,000 to $225,000, $100; $225,000 to $250,000, $110; $250,000 to
$275,000, $120; $275,000 to $300,000, $130; $300,000 to $325,000,
$140; $325,000 to $350,000, $150; $350,000 to $400,000, $160; $400,000 to $450,000, $170; $450,000 to $500,000, $180; $500,000 to
$600,000, $200; $600,000 to $700,000, $250; $700,000 to $800,000,
$300; $800,000 to $900,000, $350; $900,000 to $1,000,000, $400;
$1.000,000 to $10,000,000, $400, and $75 additional for each millibn
or fraction thereof over $1,000,000; $10,000,000 to $15,000,000,
$1,200; $15,000,000 to $20,000,000, $1,500; $20,000,000 to $25,000.000
$2,000; over $25,000,000, $2,500. These fees, taxes and penalties
are first lien on all property o f the corporation. Fee for domestic
corporations payable July 1st. for foreign corporations, during month
or July. Fifteen per cent penalty for 30 days delinquency after
i « months wilful default, attorney general on request o f secretary^ o f
state must bring action to forfeit charter. Foreign corporation
must appoint resident agent on whom process may be served.
Blue Sky Law, prohibits sale o f most corporate securities except
upon permit by State Railway Commission. Detailed sworn
statements required. Permit fee, $25, first year. $10 year thereafter
tor each agent, one permit, one dollar per year. State railway com ­
mission investigates and gives information but does not recommend
securities. Par value o f stocks must be riot less than $10.
Costs. (See Security for Costs.)
Commercial T ra velers.


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1633

C ourts. (See Actions, Appeals.) Juvenile courts are established
for treatment and control of dependent, neglected and delinquent
children. Justice and county courts are for all practical ,purposes,
open at all times except holidays; but their jurisdiction Is limited.
District courts have general jurisdiction, and have exclusive Juris­
diction In certain cases. The terms of the district court In each
county are fixed by the presiding Judge at the beginning of each year.
The supreme court has original jurisdiction In a few cases provided by
statute, but Its work Is principally confined to reviewing decisions of
the district court.
C u rtesy. Abolished 1907. (See Decedents.)
D ays o f G race. (See Notes.)
D eceden ts. (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 o f wife
surviving, to the children In equal shares and lawful issue of deceased
child by representation. 5. If no issue, to father and mother or
survivor. 6. If no issue nor parents, In equal shares to brothers
and sisters and children of such deceased, by representation. 7. If
no parents nor brothers nor 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 pre abolished.
D eeds. (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. Deeds and conveyances must correctly state
actual consideration, where it exceeds $100.
D ep osition s 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 seai 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.
D escen t an d D istrib u tio n . (See Decedents.)
D istress fo r R en t. No authority for it.
D ow er. Abolished 1907. (See Decedents.)
E m ployers L iability A ct, in force. Applies to employers having
five or more employes. Provides for medical and hospital services
and medicines, and schedule of benefits payable weekly. Maximum
for death, $4,200.
,
E states. (See Decedents.)
E x ecu tion s (see Judgments, Proceedings In Aid of Execution
Mortgages) may issue at any time after judgm ent if no stay bond
be filed, and until five years thereafter. Lana 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 days, on judgments not 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.
E x e m p tion s. 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 of the party,
two contiguous lots In any Incorporated city or village. Such exempt
property shall be free from all Judgment liens and from sale on execu­
tion, except that the homestead may be sold on foreclosure of me­
chanics’ liens, 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 pro­
fessional 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. Only 90 per cent of wages are exempt as against
a debt for necessaries of life.
F oreig n C orporation s (see Corporations, Allens) 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 accenting the provisions of the
act o f the legislature o f Nebraska, Chapter 42, Laws o f 1889; must
make written report to Secretary o f State annually in July in form
prescribed by secretary o f state and pay fee same as occupation tax
for domestic corporations; must on or before September 15th, o f
each year, file a statement with attorney-general o f State, sworn to,
showing capital stock, its market value, how paid, names o f officers,
directors and agents, amount paid in dividends and rate o f percentage
thereof, all stock held in other corporations and value o f such stock,
amount of its own stock held by other corporations and value thereof,
and amount o f trust stock held by other corporations. Does not
apply to insurance companies or common carriers. Must appoint
agent and file name with secretary Of state and with register o f deeds
in county o f principal place o f business. Service may be had On
such agent or on state auditor. Secretary o f state charges fee o f
$50.00 for keeping record o f agent. Penalty $1,000 fine. Agent
or representative doing business here for corporation that has no
resident agent, subject to $25 fine. Does not apply to insurance
companies and railroads. Any corporation whose products are sold
in Nebraska must have a resident agent on whom service in legal
action can be had. Sale by jobbers o f goods of foreign corporations
not so represented is prohibited.
F raud. (See Statute of Frauds, Limitations, Consignments.)
Conveyances made for the purpose of defrauding creditors are void
and intent Is deemed a question of fact, not of law.
G a rn ish m en t. . (See Attachment.) W rit 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.
H olidays are January 1st, February 12th, February 22d, April 22d,
M ay 30th, July 4th, first M onday in September, October 12th.

1634

BANKING AND COMMERCIAL L A W S — NEVADA

Thanksgiving, and December 25th. N o court can be.open, nor can
any judicial business be transacted on a holiday or Sunday, except,
first,.to giyé.instructions t o ,a jury then,deliberating,qn ¡their verdict;
second, to receive a verdict ' or'discharge a jury.; third, to actasm 'agistrate.in a criminal proceeding;: fom‘th,to grant or refuse a temporary
injunction or restraining order. If any such fall onSündaÿ, the nexjt
day shall bë a Holiday.
'
' : •: .. .
' 1
' ■
l'
H o m e ste a d . (See Exemptions.)
H u sb a n d an d W ife . (See Decedents, Divorce, Evidence, Exemp­
tions, Married W omen, Marriage.)
I n fa n c y . 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
sold or mortgaged to obtain funds for maintenance b y permission of
.....di^triflt.iCCiurtj,
I n s o lv e n ts ,’- (See Assignments.)
;v ;
£
>.*?
In te re st. Legal rate is 7 per centjand contract’ rate 10 per cent.
Judgments draw same rate as specified in the'instrument on which
judgment obtained, otherwise 7 per cent. A contract is not avoided
by usury, but in action thereon all payments are deducted ,from' the
principal and plaintiff recovers only the balance, without interest and
pays all costs,
J u d g m e n ts. (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
oonfession and those rendered at the same term at which action com­
menced are liens only from date o f rendition. Judgments o f county
and justice courts become liens from date o f filing transcript in the
. office o f the clerk o f the district court. Judgments may be made a
lien upon lands in other counties b y filing transcripts in the office of
the clerk o f 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 judgmehts cannot be revived unless action to
revive be commenced within ten years. Ifi judgments by confession
cause of action must be stated in the judgment or in a writing filed as a
pleading. Deficiency judgments may be recovered in mortgage foreiclosure cases, if the deficiency be such that it may be recovered at law.
J u ris d ictio n . (See Actions, Judgments.)
Ju stices o f th e P e a ce . (See Courts, Judgments, Actions.)
L icen se. (See Insurance Agents!) Commercial travelers are not
required to take out a license. There is a provision in the .code
requiring peddlers and commission merchants to take out a license.
Does not apply to persons selling their own works or productions or
books, charts, maps or other educational matter, or fresh meats,
fruit, farm products, trees or plants exclusively.
L ien s. (See Judgments.) Material men and laborers and me­
chanics 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
affidavit o f party, showing amount due, nature of the contract
description of property, names o f the parties; and if the claim arise
out of a written'contract, or if a note or other written evidence has
been taken in payment of the account, copies must be attached. An
original contractor must file such statement within four months from
the time of furnishing such material or performing the labor; a sub­
contractor within sixty days. Lien dates back to commencement of
work or labor and is Valid for two years from date of filing. All
mechanics’, liens on the saine premises, are of equal priority and pro­
rate in the proceeds of sale of property, it sold under foreclosure thereof.
L im ita tio n s. Actions brought to recover real property or fore­
close mortgages thereon must be commenced within ten years after
cause of action accrues. Actions for forcible entry and detention,
libel, slander, assault and battery, malicious prosecution, false im­
prisonment,, and those to enforce penalties or forfeitures, must be com­
menced within one year. Actions for trespass to real property, taking,
: detaining or injuring personal propérty, upon contracts not in writing
■upon,a liability created by statute other than a forfeiture or penalty,
for, injuries to rights not arising out o f contract, for relief on the
¡ground, o f fraud, and all other actions not specifically limited by
statute, must be commenced within four years. Actions upon a
spebialty, agreement, contract in writing, promissory notes, etc., and
fpreign judgments, must be commenced within five years. Actions
Upon official bonds o f executors, administrators, guardians, sheriffs,
vpr Other .officers, and upon statutory, bonds, must be commenced with­
in ten years. I f parties under disability, cause o f action does not
“'commence, to run Until such, disability removed. Actions for damages
for causing death must be brought within, two years.
L im ite d P artn ersh ip . (See Partnerships;) Articles thereof
must be in writing, acknowledged by the parties and recorded in the
office o f the county clerk of every county where partnership shall,have
a place of business. ..The special partner is n o t liable beyond the
amount contributed to the partnership funds,, but has nothing to d o
with the management or conduct of the ousffièss; otherwise is liable
as general partner. Special partner’s name shall not appear in the
firm. ,
M arried W o m e n (see Decedents, Evidence, Exemptions, Mar­
riage) may contract, bargain, sell, and convey their separate property
in the same manner as m ay a married man, and retain ownership
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.
M o rtg a g e s. (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
of property. In case o f assignment of mortgage it is safer to record
the assignment; I f note secured b y mortgage is negotiable assign­
ment need not be recorded. Release may be by separate instrument
or upon the mortgage records In register of deed’s office, and if mortga­
gee, after mortgage fully paid, neglects or refuses for seven days to
discharge such mortgage, he is liable to a penalty of $100 and all actual
damages suffered b y the other party. Mortgages can only be fore­
closed b y suit, and after foreclosure suit commenced no action can be
maintained at law upon the debt, unless authorized b y the court and
if action be first commenced at law, cannot foreclose the mortgage
until judgment obtained and execution returned thereon unsatisfied.
After decree o f foreclosure of mortgage obtained, defendant may stay
further proceedings for nine months b y filing a request for stay in
the office o f the clerk of the court within twenty days after such
decree entered. Such stay is equivalent to redemption period allowed
In other States, and owner mpy redeem at any time before confirma­
tion of sale. Deeds are held to be mortgages when intended only as
security, and must be foreclosed same as mortgages. Mortgage must
state actual consideration where it exceeds $100.
N e g o tia b le Instrum ents.,.,, (See Notes.)
N otes an d B ills. All notes, bonds, or bills of exchange, except
bank checks and instruments payable on demand, are payable at
times fixed therein, without grace; are not negotiable unless drawn
payable to a person, bearer, order, or assigns. If date of maturity fall
on Saturday or Sunday, or a holiday, are payable on the next business
day. Party purchasing negotiable paper before maturity, without


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notice, take same free irom equities between original parties UniTnrrr.
negotiable instrument law is in force.
’
u™
P artn ersh ip (see Limited Partnerships) must adopt and sio-n
articles of partnership agreement showing firm name, nature and dIsp«
pf business, name and residence of each member, and file same in' th«
Office of the county clerk of the county where business is locatpd
Neglect or refusal to comply with this requirement entails oenaltv
but does not, affect legality of business transacted. PartnershiD mav
sue and be sued in the firm name, and it is. not necessary to set forth
in the pleading, or prove at the trial, the names of the persons com
posing the firm, but in such event plaintiff must give security for costs
P lead in g s. (See Actions.)
P ow er o f A tto r n e y to convey fieal estate must be'executed and
acknowledged same as deeds and may be recorded.
1 P ra ctice. Regulated by code which is patterned after Ohio.
P rob a te. (See Courts, Decedents.) County court has exclusive
original jurisdiction of all probate matters.
P rom issory N otes. (See Notes.)
P ro o f o f C laim s. (See Decedents, Accounts.) Same rules of
evidence govern as in civil actions.
P rotest. (See Notes.)
R e p lev in , Party may, recover possession of personal property
within four, years after cause of action accrued by filing petition and
affidavit of. himself, agent or attorney, giving a description of the
property, stating the facts connected with the ownership, and that he
is entitled to the immediate possession, etc., of the property. It is
then seized by the officer and duly appraised, and within twenty-foUr
hours thereafter plaintiff must give bond in double the appraised value,
conditioned that he will duly prosecute the action and pay all costs
and damages that may be awarded against him, and rètum the proper­
ty or its reasonable value to the defendant in case judgment for a
return be rendered.
R ev en u e. (See Taxes.)
Sales. (See Conditional Sales.) Merchant cannot sell in bulk
without notice to creditors.
S ecu rity fo r C osts. Non-resident plaintiff must give security for
costs or furnish cash bond.
S ta tu te o f L im ita tio n s. (See Limitations.)
Stay. (See Executions, Judgments, Mortgages.)
S uits. (See Actions.)
S u m m on s. (See Actions, Attachments, Divorce, Service.)
T axes. Taxes on real property are a lien thereon from October 1st
of year of levy. TaXes on personal property are a lien thereon from
November 1st of year of levy. Tax deed may issue after two years
from daté o f sale certificate. Inheritance tax runs from 1 per cent
upward. For all real estate taxés delinquent one year or more, the
bounty may sell the property by action in court.
T orren s S ystem . Provision is made fer registration of land
title, under Torrens System, upon application o f owner;
T rust, C om p an ies are authorized to act as executors, adminis­
trators, receiver, agents, etc.
T ru st D eeds are seldom used and are treated as mortgages.
W ills. (See Decedents.) Every person of full age and sound
mind may dispose of his property by will, which must be signed by
tbe testator, or under his express direction, by some one in his presence
and subscribed in, his presence and in the presence of each other, at
his request, by two or more competent witnesses. Nuncupative wills
are valid when proved by the oath of three witnesses present at the
making thereof, and when the testator at the time asked the persons
to bear witness that such was his will, or words of like effect. No will
shall be effectual to pass title to any property unless probated. Foreign
wills duly proved and allowed in any state or foreign country may be
probated In this State in any county wherein the testator shall have
real or personal property, on which the will shall operate
W itn esses. (See Evidence.)
W o rk in g m e n ’s C o m p en sa tion . (See Employers Liability.)

SYNOPSIS OF

THE LAW S OF NEVADA
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by A t r e s & G a r d in e r , Attorneys and Coun­
selors at Law, Reno. (See Card in Attorneys’ List.)
A ck n ow led g m en ts. Every mortgage,-deed, or other conveyance,
conveying or affecting real estate, shall be acknowledged or proved
and certified as follows: I f within this State it may be a judge or
clerk o f a court having a seal, notary public, county recorder, or
justice o f the peace. I f without this State, and within the Unitea
States, b y a judge or clerk o f a State, United States, or territory coins
having a seal, a commissioner o f deeds for this State, or some notary

BANKING AND COMMERCIAL L A W S — NEVADA
oublie or justice o f the peace in his county. A justice’s certificate
which is attached to a deed to be recorded out o f his county, must
have a certificate o f a clerk or a court o f record o f his comity as to
his signature and official character. I f outside o f the United States,
tiie acxnowledgment can be had oefore a judge or clerk o f a court
having a seal, or a notary public or a minister, commissioner, or counsel
of the United States, thé certificate o f the officer taking the acknowl­
edgment shall be annexed to or endorsed on the instrument, and shall
he under hand and seal except m cases o f justices o f the peace which
shall be under the hand o f such justice o f the peace and certified as
above stated. The party executing and acknowledging the instru­
ment must be known or proved by oath o f witness to be the proper
party, and the certificate must state such fact.
Conveyance by a married woman is -acknowledged in the same way
and form as that o f a man and has the same effect as if she were
unmarried. The form o f acknowledgment by an individual shall be
substantially as follows:
■ ' .
/
State of Nevada, County o f ..................
On t h is .. . . . . . . . .day
0f ................ A. D ............................................ personally appeared
before me, a notary public (or judge or other officer as the case may
be) in and for the County Of . . . . . . . . , . Ç, ; State o
f
,
,............known (or proved) to me to be the person described inr
and who executed t h e .foregoing instrument, who acknowledged to
ine that he (or she) executed the same freely and voluntarily and for
the uses and purposes therein mentioned.
In witness whereof I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
............... Notary Public in and for the County o f ..........................
State o f . .................. . ( o r other official name o f the officer who takes
the acknowledgment).
Form of acknowledgment o f a corporation.
State of Nevada, County o f ....................... On this.......................day
0f ...............A. D. ............. personally appeared before me a notary
public (or other officer or judge as the case may be) in and for the
County o f........................ State o f .......................... (name o f party who
executes and acknowledges instrument) known (of proved) to me to
be the president (vice-president or secretary) o f the corporation that
executed the foregoing instrument and upon oath did depose that he
is the officer o f said corporation as above designated, that he is ac­
quainted with the seal o f said, corporation and that the seal affixed to
said instrument is th^corporate seal o f said corporation; that the signa­
tures to said instrument were made by officers o f said corporation
as designated after said signatures; and that the said corporation
executed the said instrument freely and voluntarily and for the uses
and purposes therein mentioned.
'
In witness whereof I have hereunto set m y hand and affixed my
official seal the day and year in this certificate first above written.
..................Notary Public in and for the County o f .........................
State o f.......... . ;
(or other official name o f the officer who takes
the acknowledgment).
Form by attorney-in-fact:
State of Nevada, County o f ....................... On t h i s . . . ............ day
of.. ; ............, A. D ................ personally appeared before me a Notary
Public (or judge or other officer as the case may be) in and for the
County o f . ...... .............. State o f Nevada (name o f person who exe­
cutes and acknowledges instrument) known (or proved) to me to be
the person whose name is subscribed to the within instrument as the
attorney in fact o f . . . . . . . . . .and acknowledged to me that he sub­
scribed the name o f said.......... ..
.thereto as principal, and his own
name as attorney-in-fact, freely and voluntarily and for the uses and
purposes therein mentioned.
1
In witness whereof I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
.....................Notary Public in and for the County o f ................... .
State o f.................. (or other official name o f the officer who takes the
acknowledgment).
By the laws o f the State o f Nevada, any acknowledgment hereto­
fore or hereafter taken or certificate thereof made without this State
either in accordance with the laws o f this State or in accordance with
the laws o f the State, Territory, or Country where the acknowledg­
ment is taken, shall be sufficient in this State. ■ Nevertheless a Notary
should affix his seal even in those states which do not require it.
The certificate o f acknowledgment o f conveyance;
A certificate o f acknowledgment o f any conveyance or other instru­
ment in any way affecting the title to real estate or personal property,
or the proof of execution thereof as provided in the laws o f Nevada,
signed by the officer taking the same, and under the seal o f such
office, shall entitle such conveyance or instrument with the certificate
or certificates o f acknowledgment to be recorded in the office o f the
recorder of any county in this State provided that any State o f United
States contract o.r patent for land may be recorded without any such
acknowledgment or proof.
Actions. (See Suits, Limitations.)
Affidavits. Affidavits taken out o f this State but within the
'United States to be used before any court or officer in this State must
be taken before a notary public, a commissioner appointed by the
governor o f this State, or a judge o f a court having a seal attested by
the clerk. I f in a foreign country such affidavits shall be taken before
an ambassador, minister, consul, or vice-consul o f the United States,
or judge o f a court in such foreign country having a seal. The
genuineness o f the signature o f the judge, the existence o f the court
and the fact that such judge is a member thereof shall be certified by
the clerk o f the court, under the seal thereof.
Aliens. Persons and corporations, except subjects of the Chinese
Empire, have the same rights as resident citizens and domestic cor­
porations, except that foreign Corporations must com ply with corpora­
tion laws of this State.
Appeals. Actions tried in Justice court may be appealed to dis­
trict courts, where trial is had de novo and can proceed no farther.
Actions in which the district courts have original Jurisdiction may be
appealed to the supreme court.
A rbitration. Provision is made by law for the settlement o f dis­
putes by arbitration; the award of the arbitrators to be filed with the
clerk of the district court and docketed the same as a judgment in
civil action.
Arrest. A fraudulent or absconding debtor, or one who conceals
nls property, or removes or disposes of it with intent to defraud his
creditors, may be arrested on affidavit of the fact made; surety in not
less than $500 being given by the plaintiff. (See Attachment.)
Assignm ents a n d In solv en cy - Except as affected b y the
national bankruptcy act o f 1898, the statute respecting assignment
js m force: Insolvent debtors may be discharged from their debts
by complying with provisions o f insolvent laws. An assignment o f
insolvent debtor, not in compliance with insolvent laws, is void as
to creditors.
A ttachm ent. W rit o f attachment may be issued with summons,or, at any time afterward on affidavit and bond. In an action upon
a judgment or upon a contract for the direct payment o f money, made,
or by the terms thereof payable, in this State, which is not secured
by mortgage, lien, or pledge upon real or personal property, situated
or being in the State; if so secured, when such security has without
act of plaintiff or person to whom given become valueless or insufficient
m value to secure sum due in which case attachment may issue for


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Federal Reserve Bank of St. Louis

1635

unsecured' portion or excess of debt over value- o f security. In an
action upon a contract against a defendant not residing in this State.
In an action by a resident of the State for the recovery o f the value
of property, where such property has been converted by a defendant
without the consent of the owner. Where the defendant has ab­
sconded, or is about to abscond, with intent to defraud his creditors.
Where the defendant conceals himself so that service o f summons can
not be made upon him. Where a defendant is about to remove his
property, or any part thereof, beyond the jurisdiction of the court
with the intent to defraud his creditors. Where a defendant is about
to convert his property, or any part thereof, into money with intent
to.place it beyond the reach of his creditors.' Where a defendant
has assigned, removed, disposed of, or is about to dispose of his prop­
erty, or any part thereof, with the intent to defraud his creditors.
Where a defendant has fraudulently or criminally contracted a debt »
or incurred the obligation for which suit has been commenced. Gar­
nishee process may be had in aid of attachment. The clerk o f the
court shall issue the writ o f attachment upon receiving and filing an
affidavit by or on behalf o f the plaintiff, showing the nature o f the
plaintiff’s claim,, that same is just, the amount which the affiant
believes the plaintiff is entitled to recover, and the existence o f any
one o f the grounds for an attachment above enumerated, with an
undertaking riot less than $500, and àn airiount equal to oné-fourth
of demand, but not exceeding $5,000. In Justice's Courts (See
Courts) bond m ust be in amount sued for but not undei SSpt
B an ks. State— are regulated and controlled b y a comprehensive
general banking law. Amended (1915) to permit State banks to join
Federal Reserve Bank System.
•
.
C on v ey an ces. The husband has the entire'management and control
of the community property, with the like absolute power of disposition
thereof, except as hereinafter provided, as of his own separate estate;
provided, that no deed of conveyance, or mortgage, of a homestead as
now defined by law, regardless of whether a declaration thereof has
been filed or not, shall be valid for any purpose whatever, unless both
the husband and wife execute and acknowledge the same as now pro­
vided by law for the conveyance of real estate.
C orp oration s. The laws of this State are substantially' the same
as those o f New Jersey. Foreign corporations to transact business
and institute actions in this State must file certified copy of articles
o f incorporation with the secretary o f state and county clerk; also
designation o f resident agent. There is no license tax. Stockholders
and directors’ meetings o f Nevada Corporations may be held in or
out o f State. There is no “ Blue S ky” law. The laws o f this State
are generally regarded as most desirable in every way for the formation
o f corporations to do business in other states.
C u rtesy Is not recognized in this State. C ourts. Jurisdiction. District courts have original, statutory,
and common law jurisdiction in all cases at law and in equity, also in
law, when the title or possession of land or mining claims may be,
involved, or legality of any tax, etc., also in actions to foreclose
mechanics’ lien; and in all cases in which the demand, exclusive of
interest, or the value of the property in controversy exceeds $300,
and in probate in all cases relating to estates of deceased persons, and
persons and estates of minors, insane persons. Justice’s jurisdiction,
$300, exclusive of interest, and attorney’s fees. D eeds. A deed o f quit-claim passes all the title that the grantor
has at the date o f the conveyance. A deed o f grant, bargain and sale
carries with it the statutory covenant that at the time that the
grantor executed the deed, he had not conveyed it to any Other
person and had placed no encumbrance upon it. , This form of
deed conveys any title that the grantor shall afterwards acquire.
A warranty deed contains a covenant: “ The grantor herein will
forever warrant and defend the title to the premises herein des­
cribed against any and all persons whomsoever claiming the same.”
The law governing and form o f acknowledgments is titled under
“ Acknowledgments.”
D ep osition s. Depositions may he taken ,within this State before
any judge, clerk, justice of the peace or a notary public, upon notice
to the opposite party of the time and place of taking. Depositions
may be taken out of the State upon coriunission under the seal of the
court upon proper application, or by stipulation of the attorneys.
D ivorce. Divorce from the bonds o f matrimony may be obtained
by complaint under oath to the District Court, of the county in
which the cause therefor shall have accrued, or in which the defendant
shall reside or be found, or in which the plaintiff shall reside, if the
latter be either the county in which the parties last cohabited, or in
which the plaintiff shall have resided six months before suit be brought,
for the following causes:
First: Impotency at the time o f marriage continuing to the time
o f the divorce.
Second: Adultery, since the marriage, remaining unforgiven.
Third: Wilful desertion, at any time, o f either party by the other
for the period o f one year.
Fourth: Conviction o f felony or infamous crime.
Fifth: Habitual gross drunkenness, contracted since marriage
either party, which shall incapacitate such party from contributing
his or her share to the support o f the family.
Sixth: Extreme cruelty in either party.
Seventh: Neglect o f the husband, for the period o f one year, to
provide the common necessaries o f life, when such neglect is not the
result o f poverty on the part o f the husband which he could not
avoid b y ordinary industry.
Residence is defined as follows:
“ The legal residence of a person with reference to his or her right
of suffrage, eligibility to office, right of naturalization, right to main­
tain or defend any suit at law or in equity, or any other right dependent
on residence, is that place where he or she shall have been actually,
physically and corporally present within the state or county, as the
case may be, during all of the period for which residence Is claiined
by him or her; provided, however, should any person absent himself
from the jurisdiction of his residence with the intention in good faith
to return without delay and.continue his residence, the time of such
absence shall not be considered in determining the fact of such
residence.”
D ow er is not recognized in this State.
E x ecu tion s. Stay of Execution; Judgments. The laws of Nevada
on these points are similar to those of California [see ante], except
that when redemption is made o f real estate, one per cent per month
must be paid in addition to purchase money. When property is
redeemed from a previous redemption, which may be done within
sixty days, his purchase price plus two per cent thereon is required;
E x em p tion . Homestead, $5,000; the earnings of the debtor, if
earned thirty days proceeding, if it is made to appear necessary for
the support o f the debtor, exeinpt where debt is for necessaries, or his
family; personal and rinning property, stools, implements, etc.,
exempt same as in California [which seej.
G a rn ish m en t. (See Attachment.)
H olid ay s. Sunday, New Year’s Day, Lincoln’s Birthday, Wash­
ington’s Birthday, Memorial Day, Fourth o f July, Labor Day, Octo­
ber 12th (Columbus Day) and 31st (Nevada admission day). Thanks­
giving, December 25th. and all days on which a primary or a general

1636

BANKING AND COMMERCIAL L A W S — N E W HAMPSHIRE

election is held, are non-judicial days and-are termed legal holidays
and generally observed as such. Also Arbor day fixed by proclama­
tion o f governor one month before fixing such date,' and is only a
holiday for public schools. Bills o f exchange, checks, promissory
notes, and other negotiable instruments falling due upon any holiday
are payable the day previous.
H u sb a n d a n d W ife . (See Married Women.)
In te re st. The legal rate is 7 per cent per annum, but parties may
contract in writing for the payment o f any other rate not in excess of
12 per cent per annum. After a judgment on such a contract, only
the original claim shall draw interest, and the rate o f interest must
be mentioned in the judgment. Unadjusted accounts do not bear
interest.
L im ita tio n s o f S uits. Open or store account and contract not
in writing, four years; upon contract or instrument o f writing, six
years; actions concerning real property, except mining claims, five
years; mining claims two years.
Judgment, or decree o f the district
court-—six years; o f the justices court— five years. Revivor: Ac­
knowledgment or new promise in writing or payment on account.
Judgments become a hen upon real property for two years.
M arried W o m e n . 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 com­
munity 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 hus­
band may dispose of one-half of the common property by will, exclu­
sive of the homestead. The other half of the community property
goes to the wife, subject to administration and debts of the husband.
Separate property o f wife should be inventoried and recorded. Fail­
ure so to do raises prima facie presumption property is not her separate
estate.
M o rtg a g e s must be recorded. No mortgage o f personal property
Is valid unless possession is delivered to and retained by the mort­
gagee, or unless the mortage be accompanied by the statutory affi­
davit o f the mortgagor and mortgagee or some person on their benalf
and is recorded in the county where the mortgagor and mortgagee
reside.
N otes a n d B ills o f E x ch a n g e . The uniform negotiable Instru­
ment law has been adopted In this State.
P rob a te. All claims against estates of deceased persons must be
filed within three months after the first publication of the notice of
appointment of the executor or administrator. Estates not exceeding
$2,000 in value, in the discretion of the judge, may be summarily
administered, and in cases of summary administration all regular pro­
ceedings and notices are dispensed with, except the notice of the
appointment of the executor or administrator. Creditors of such an
estate must file their claims within forty days.
All estates of husband or father of 5500 or less are distributed to
widow or children under age without probate, not subject to any debts.
Sales. The uniform sales act is in force in Nevada. There is
also a “ bulk sales” act.
S uits. Practice is under acode, and there Is but one form of action,
known as a civil action, and commenced by filing complaint with the
clerk of the court and the Issuance of a summons. Service on non­
residents may be had by publication. Personal service of a copy of
summons and complaint Is equivalent to the publication of the sum­
mons.
\
T axes are a lien upon the property assessed and the real estate of
the owner thereof from the first Monday In March In each year.
Suits 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.
W ills. The Uniform Wills Act is in force in Nevada.

SYNOPSIS OF

THE LA W S OE N E W HAMPSHIRE
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by J ohn R . S pring , Attorney at Law, Nashua.
(See Card In Attorneys’ List.)'
A c k n o w le d g m e n ts o f 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 o f the grantor must be attested by two witnesses.
A c tio n s. The common law prevails as to procedure. Non-resi­
dents can institute suit, a resident becoming responsible for costs
by Indorsing the writ. Transitory action may be brought in the
county where one o f the parties resides. I f both are non-residents
the action may be brought In any county.


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,v A ? « statlo„n o f„E states. Administration shall be granted in
the following order of precedence: To the executor named• to
widow, or any of the next of kin, or to such person as thev shall
nominate; to one of the devisees or to a creditor; to such other DerJm!
as the judge shall think fit. A non-resident shall not be appointed
unless urgent necessity demands. An ample bond with restdant
sureties shall be filed. No suit shall be brought against the admin
lstrator within the first year of his administration. Claims shall
presented within one year after his appointment, and no action can
be brought after two years. Actions are not maintainable asrainst
an administrator of an estate, after a decree ol insolvency
Estate«
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 allow
ance, charges of burial, and taxes. Claims for the last sickness shall
be paid In full if there remains anything after paying the Deferred
claims. (See Arbitration.)
A ffid a v its.

Affidavits are not admissible In evidence, being ex

arte, but motions are heard upon affidavits presented to the court
S
lay be made before an officer authorized to administer oaths
fSe«
Attachments.)
1
A lien s. They are not entitled to vote. An alien may purchase
hold and convey real estate, and It will descend in the same manner
as If he were a native born citizen. When the wife of an alien has
resided in the State six months, separate from her husband, she
acquires all the rights of the wife of a native bom citizen.
A rrest. 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 exenmt
from arrest. (See Attachments.)
A ssig n m en ts an d I n s o lv e n cy . Assignments for benefit of credi­
tors 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.
A tta c h m e n ts of all real and personal property may be made on
the original writ, and constitute a valid lien on the property for thirty
days after judgment, within which period the execution must be levied
to preserve and perfect the lien. All attachments take precedence
in order of priority, except In case of Hens 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 against claims for necessaries the wages of the
defendant up to $20 are exempt from such process. (Bill now pending
in Legislature to modify trustee exemptions.) In actions on con­
tracts 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.)
B a n k . Banks can be chartered only by a special act of the legis­
lature. Building and loan associations may be organized as volun­
tary 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. (Bill now pending reducing number of
bank, commissioners to one.) The commissioners shall on or before
the 1st day of October, annually, file their report with the secretary
of state. They shall give in their report a detailed statement of ail
the items of expense of each institution, with the names of the treas­
urer and clerks, the salary of each, with the kind and amount of stook*
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 o f partnership formed for the pur­
pose 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, specify­
ing in separate columns the capital stock actually paid in; debts due
the bank secured by pledge of its stock; value of real estate belong­
ing 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 and sworn to by the
cashier, and returned to the secretary of state. The trustees of sav­
ings 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.
B ills o f E x ch a n g e. (See Notes, and Bills of Exchange.)
C h a ttel M o rtg a g es. (See Mortgages.)
C ollateral. There have been no statutory enactments on this
subject. Pledgee of stock is not liable as a stockholder, but the gen­
eral owner is.
C on v ey a n ces. Every deed, and lease for more than seven years,
shall be signed, sealed, attested by two or more witnesses, acknowl­
edged 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. Admin­
istrators, guardians, and trustees can convey only by virtue of a license
frdm the probate court. Sheriff’s deeds shall give full particulars as
to the action, and shall covenant that be has observed all the require­
ments of law.
C orp ora tion s. Corporations can be chartered by the legislature
Voluntary corporations can be formed for any purpose except bank­
ing, life insurance, railroading or trading-stamp business. Five per­
sons may associate thèmselves 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 any­
where from $1,000 to 55,000,000, 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 ol the State.
And at least one of the directors shall be an actual resident of the
State, if the corporation as any stockholders resident in the State.
No corporation shall selljor dispose of any of its stock at a price les*
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

BANKING AND COMMERCIAL L A W S — N E W HAMPSHIRE
»ronfmrer and a majority oi the directors shall have been recorded
“ S r tM town clerk. Every corporation, except banks, railroads.
ITh insurance companies, shall annually, In May, return a sworn
r«nnrt signed by the treasurer and a majority oi the directors, o 1
assets, liabilities, and any assessments, which report, shall be
fomirded in the office of the secretary of state. A failure to make such
return renders the officers personally liable for all the company debts.
finurts. The superior court has original Jurisdiction over all causes
Th« suDreme court decides questions of law upon bills of exception,
transferred from the superior court, and It holds its sessions every
mrmth except July and August. Probate courts have Jurisdiction
Srer estates of deceased persons, Insolvent estates, minors, insane
nprsons adoptions, change of names, trustees, and partition of real
K te
District police courts and justices o f the peace have concurrent
jurisdiction with the superior court up to $100 when, the title to real
«state is not involved, and can render Judgment upon confession up to
f?nn The terms of the superior court shall be held In each year at
the times and places following: For the county of Rockingham, at
Fxeter on the third Tuesday of January and the third Tuesday of
Anril- and at Portsmouth on the third Tuesday of October. For the
Bounty 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 ol
November For the county of Carroll, at Osslpee. on the third Tues­
day of May. and the second Tuesday of November. For the county
of Merrimack, at Concord, on the first Tuesday of April and the first
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 Tues­
day of October. For the county of Sullivan, at Newport, on the seoond Tuesday of May and the second Tuesday of November
l o r the
county of Coos, at Lancaster, on the third Tuesday of April; at Colebrook. on the first Tuesday of September, and at Berlin, on the first
Tuesday of December. For the county of Grafton, at Plymouth, on
the second Tuesday of May and the second 1 uesday of November;
at Haverhill, on the third Tuesday of March and the third Tuesday of
September: at Lebanon, on the third Tuesday of April and the third
Tuesday of October.
Days o f G race. None except on sight drafts.
Depositions. The party proposing to take depositions shall give
the opposite party a four days’ notice, of which the following is a form :
"To A B. C., of etc., o r ................ att’y of record: Depositions will
be taken at the office of ................ In . . . . . . . . In the County of
.............and State of .................on t h e ------ day o f .......... ..
19.....
at . . . o'clock In t h e ...............noon, In which a c t i o n ......... .. is pin.
and
••• is deft., to be heard and tried at t h e ............. Court to
be holden a t ............ in the County o f ............ .. . on t h e ----- day of
.. 19 . . . Dated a t .............. t h i s ------- day o f .................. 19. •
" ' ’ ................................................................... . Justice of the Peace.
One extra day’s notice to be given, up to twenty days, for each
twenty additional miles. They are taken before a justice of the
peace or a commissioner. They can- only be taken by written questions
and answers proposed by counsel and administered by the magis­
trate. Objections are minuted on the deposition by the magistrate,
but he does not pass upon the validity of such objections. Deposi­
tions 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.
. , .u *
Enclosed Is the deposition o f .......................to be used In the action
o f ...................... vs............................
Sealed up by m e ........ ' ................
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
oommenced.
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 o L ........................
Personally appeared before me, a Justice of the Peace within and for
laid County, the within named ......................•> on the . . . . day oi
..................... 1 9 . at . . . . o ’clock In t h e ............ noon, at the office
o f ................’ ............................... Street, in . . .
In said County,
and made oath that the annexed deposition by hiihi subscribed con­
tains the truth, the whole truth, and nothing but the truth relative
to the cause for which it was taken. Said deposition is taken at the
.........request of ....................... of ...............................••» to bemsed
in the ...........................Court, in an action now pending (or to be
entered) in .said Court, wherein of* etc., is plff. and of, etc., is delt.
The taking of said deposition was begun at . . . .
o clock in tne
....... . . . noon of said day, and was continued until finished. The
«a id .............. was (not) present and did (not) object.
Dated at s a i d .......................this . . . . day of . . . . ••- .«19.. •■• „
........................... ....
Justice of the Peace.
Descent o f P ro p e rty . The real estate subject to dower or curtesy
and homestead shall descend in equal shares as follows: 1. i o the
children arid 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..
8. 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 rthe case oi
realty. The widow is entitled, in addition to her doWpt and home­
stead, 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 5i,auo,
the distribution is made according to the other provisions of the law»
as above set forth. A surviving husband has the same rights in bis
wife’s estate that a wife would have in her husband s estate. (fc>ee
Dower.)
Dower. A widow is entitled to dower in the real estate of which
her husband died seized, excepting in land not imder cultivation or
in a wood lot not used in connection with a farm. The dower may
be assigned by metes and bounds, and the widow has an undivided
net third part of the rents and profits until dower Is assigned, “ he
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.
E vidence. 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


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1637

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 m aybe
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.
E x ecu tion s 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. W rit of possession
issued sixty days after judgment. A review; may be granted by the
court when injustice appears to have been done through accident,
mistake, or misfortune. Real property taken under execution may
be redeemed within one year.
E x em p tion s. Homestead to the value of $500; necessary appar^
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 d
$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.
F raud. Aside from criminal frauds, the superior court, in the
exercise of its equity functions, has jurisdiction over frauds.
G arn ish m en t. Known to our law as trusteeing. Any personal
action except trespass, defamation of character, and malicious prosecutlon, may be begun by, trustee process. Trustees are not charge­
able 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. (Subject to passage of
pending legislation— 1913.)
H olid ays. (See table, page 13.)
H u sban d an d W ife. They may make ante-nuptial agreements
which can be in lieu of dower, homestead, and distributive share. (See
Arrest, Allens, Descent of Property, Dower, Divorce, Married Women,
and Wills.)
•
In terest. 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 for­
feits 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 o
Der 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.
J u d g m e n ts are not a lien upon real estate, except when attach­
ment 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 II the
mortgagor pay the amount of the judgment within two months, the
judgment shall be void. Judgments are rendered on the last day of
the term of the court where the action has been disposed of. .
L iens. Besides the common law lien the legislature has provided
for a lien upon all the effects and baggage of a boarder; also lien for
the pasture of horses, cattle, sheep, or other domestic animals. A .
person who may have performed labor or furnished material toward
building, repairing, fitting or furnishing a vessel shall have a lien
thereon for the space of four days after completion. A person who
may have furnished a monument or tablet, or curbing, shall have a
lien thereon. And a person having a lien on personal property, when
no time is limited for the payment of the debt, may sell the same at
auction, fourteen days’ notice of the sale being required, if the value
of the property exceeds $100, and a sworn return of said sale shall be
recorded in the office of the town clerk.
L im ita tio n s o f S uits. 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 tw
years.
M arried W om en retain all property owned by them before mar­
riage, or acquired afterward in any way except through prop erty oi
the husband, to their sole and separate use, as If unmarried. All their I
contracts in relation to such property are valid and binding, and aH
their other contracts are binding, except those as sureties or guarantors
for their husbahds, 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 m ay’ be attached to pay them. They are
also liable for their torts before marriage in relation to their separate
oroperty. 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.
M ortg a g es. 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 vear. 2. By peaceable entry in the presence of two witnesses
and continued actual possession for one year. 3. By the mortgagee
In Dossession taking formal possession under the second method. 4.
Bv a sale under the provisions of a power of sale mortgage. Mortgages
or personal property, to be effectual, the mortgagor and mortgagee
must take and subscribe the following oath: "‘ We severally swear
that the foregoing mortgage is made for the purpose of securing the
debt specified in the condition thereof and for no other purpose what­
ever, 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 mort­
gagor, it must be recorded in the office of the clerk of the town where
the property is situated.
N otes a n d B ills Of E x ch a n g e. An instrument to be negotiable
must conform to the following requirements: 1. It must be in writ­
ing and signed by the maker or drawer. 2. It must contain an un­
conditional 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

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BANKING AND COMMERCIAL L A W S — N E W JERSEY

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 con­
fession of judgment if the instrument be not paid at maturity; or
waives the benefit of any law intended for the advantage or the pro­
tection of the obligor,- or gives the holder an election to require some­
thing 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 tnat instruments payable on demand may, at the
option pf the holder, be presented for payment before 12 o ’clock, noon,
on Saturday, when that entire day Is not a holiday. (See Holidays.)
P ow er o f A tto r n e y . (See Conveyances.)
P rob ate L aw . The probate court is a county court, and holds
numerous sessions in various places. Proceedings are begun by peti­
tion and citation issued. The citations are served twelve days before
the return day.; The cour