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DIGEST OF BANKING AND
COMMERCIAL LAWS
Compiled Expressly for
THIS EDITION OF
Rand-McNally Bankers’ Directory
AND
Bankers’ Register
BLUE BOOK
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 INSTRUMENTS LAW
State
In Effect
Alabama............................... ................. Jan. 1.
Arizona................................. ................. Sep. 1.
Arkansas ............................... ................. Apr. 22,
.................
................. July 19.
Connecticut......................... ................. Apr. 5.
1908
1901
1913
1917
1897
1897
3.
3.
20.
10,
1.
1,
4.
1899
1897
1907
1903
1907
1913
1902
Dist. of Columbia............... ................. Apr.
Florida.................................. ................. Aug.
Hawaii................................... ................. Apr.
Idaho.................................... ................. Mar.
Illinois.................................. ................. July
Indiana................................. ................. Apr.
................. July
Kansas..................................
Kentucky.............................
................. June 1. 1898
................. Jan. 1. 1899
................. Sep. 16. 1905
................. Apr. 24. 1913
................. July 7. 1916
................. Mar. 7. 1903
State
In Effect
Nebraska.............................
Nevada...............................
New Hampshire................. ................... Jan.
New Jersey......................... ................... July
New Mexico....................... ................... Mar.
New York........................... ................... Oct.
North Carolina................... ................... Mar.
North Dakota..................... ................... July
Ohio.................................... ................... Jan.
Oklahoma........................... ................... July
Oregon................................. ................... May
Pennsylvania..................... ................... Sep.
Philippines......................... ................... May
Rhode Island..................... ................... July
South Carolina................... ................... Mar.
South Dakota..................... ................... July
Tennessee........................... ................... May
Utah.................................... ................... July
Vermont............................. ................... Feb.
Virginia............................... ................... July
Washington......................... ................... June
W. Virginia......................... ................... Jan.
Wisconsin........................... ................... May
Wyoming........................... ................... Feb.
1.
4,
21,
1.
8.
1.
1,
20.
19.
2,
31.
1.
25.
1.
16.
1.
13,
1.
7.
1.
15.
15.
1910
1902
1907
1897
1899
1899
1903
1909
1899
1901
1911
1899
1914
1913
1899
1899
1913
1898
1899
1908
1899
1905
For Tabulated Information concerning Interest Rates, Days of Grace and Statutes of Limitation
see Page 14
1733
111
Dates of Regular Meetings
of Legislatures
Alabama__________ _
Alaska ____________
Arizona____________
Arkansas__________
California_________
Colorado__________
Connecticut_______
Delaware__________
District of Columbia
Florida____________
Georgia___________
Hawaii____________
Idaho _____________
Illinois____________
Indiana___________
Iowa______________
Kansas____________
Kentucky__________
Louisiana_________
Maine_____________
Maryland_________
Massachusetts____
Michigan__________
Minnesota_________
Mississippi-________
Missouri___________
Montana__________
Nebraska__________
Nevada ___________
New Hampshire__
New Jersey________
New Mexico_______
New York_________
North Carolina_____
North Dakota_____
Ohio______________
Oklahoma_________
Oregon-----------------Pennsylvania--------Rhode Island-------South Carolina____
South Dakota_____
Tennessee_________
Texas_____________
Utah______________
Vermont__________
Virginia___________
Washington______
West Virginia____
Wisconsin________
Wyoming-------------
January, 1915, and every four years.
A Territory.
—January------------------------ Every odd year.
--January-------------------------Every odd year.
.-January________________ Every odd year.
--January________________ Every odd year.
--January________________ Every odd year.
—January------------------------ Every odd year.
—Under U. S. Government.
_-April------------------------------- Every odd year.
__June------------------------------Every year.
—February------------------------ Every odd year.
—January-------------------------- Every odd year.
--January--------------------------Every odd year.
__January--------------------------Every odd year.
__January---------------------------------- Every oddyear.
—January---------------------------------- Every oddyear.
_ January______________________ Every evenyear.
__May__________________________ Every evenyear.
—January---------------------------------- Every oddyear.
__January----------------------------------Every evenyear.
—January_________________ Every year.
_ January-----------------------------------Every oddyear.
. -January______________________ Every oddyear.
--January______________________ Every evenyear.
--January_______________________Every oddyear.
--January______________________ Every oddyear.
—January______________________ Every oddyear.
—January______________________ Every oddyear.
—January______________________ Every oddyear.
—January_________________Every year.
__ January_______________________ Every oddyear.
__January_________________Every year.
—January_______________________ Every oddyear.
—January---------------------------------- Every oddyear.
—January---------------------------------- Every oddyear.
—January---------------------------------- Every oddyear.
— January________________________ Every oddyear.
.—January______________________ Every oddyear.
.—January------------------------- Every year.
___ January_________________ Every year.
—January______________________ Every oddyear.
.—January_______________________Every oddyear.
—January_______________________Every oddyear.
___ January_______________________ Every oddyear.
___ January_______________________Every oddyear.
___ January______________________ Every evenyear.
__ January-----------------------------------Every oddyear.
.—January---------------------------------- Every oddyear.
.__January_______________________ Every oddyear.
___ January_______________________ Every oddyear.
1734
DIGEST OF BANKING AND COMMERCIAL LAWS
COMPILED EXPRESSLY FOR EACH EDITION OF THE RAND-McNALLY BANKERS’ DIRECTORY
AND BANKERS REGISTER
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 Information, for quick reference in regard to Interest Rates, Days of
Grace, and Statutes of Limitations, see page 14.
SYNOPSIS OF
THE LAWS OF ALABAMA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Ritter & Wynn, Attorneys at Law,
Birmingham. (See Card in Attorneys’ List.)
Acknowledgments or proof of real estate instruments may be
before one of the following officers: 1st. Within this State, judges of
the supreme and circuit courts and the clerks of such courts, chan
cellors 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 of record, mayor or
chief magistrate of any city, town or borough, or county, notaries
public or by any diplomatic, consular, or commercial agent of the
United States. Foreign officers must attach official seal. For forms
of deeds see “Conveyances.”
Actions. All ordinary suits at law are commenced by suing out
a summons which must be accompanied by a complaint stating the
cause of action. Non-resident plaintiffs are required to give security
for costs. When two or more persons are jointly bound by Judgment,
bond, or agreement, the obligation is several as well as joint.
Actions on Account. Suits upon open accounts may be accom
panied by itemized, verified statement of the account, which when
filed with the summons and complaint may be admissible in evidence
to prove the account unless its correctness is denied under oath by
defendant within the time allowed for pleading. Such statements
must be sworn to by a person having knowledge of the correctness
of the account and must show that the amount is due and unpaid
after allowing all offsets and counter claims.
Acceptance. Unconditional promise in writing to accept a bill
before or after drawn is good in favor of all who take it upon faith
thereof for value. The holder may decline a qualified acceptance and
treat the bill as dishonored; if he takes qualified acceptance drawer
and endorsers are discharged.
A Check. Is a bill of exchange on a bank payable on demand;
must be presented 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
making, uttering, drawing, or delivery of a check, draft, or order
upon which payment is refused upon due presentation because of
lack of funds shall be deemed prima facie evidence of intent to de
fraud and party may be convicted of 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
changes the law in this State as to suggest the propriety of special
examination in any doubtful case.
Administration of estates is had in the probate courts of dece
dents' residence. All claims must be presented within twelve months
after the same have accrued or within twelve months after the grant of
letters testamentary or of administration, or else barred. Infants and
persons of unsound mind have one year to present their claims after
di«»hiiitips removed. Administration of Intestate is granted, 1st:
To the husband or widow; 2d: The next of kin entitled to share in
the distribution of the estate; 3d: The largest creditor of the intestate
residing within this State; 4th: Such other person as the judge of
probate may appoint. There can be no appointment until after
expiration of fifteen days from date of death. Preference must be
exercised within forty days or rights relinquished. If several entitled
to administer, men are preferred to women and whole blood to half
blood. Non-resident executors and administrators may sue In this
State by recording In probate Judge’s office copy of letters and giving
bond to faithfully administer property. 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
clerk of any court. Justices of the peace, and notaries public or any
other person invested by law with judicial functions. Outside the
State and within the United States may be taken before any judge or
clerk of federal court, judge of any court of record in any state,
notaries public and commissioners appointed by the governor. 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.
Alterations. When a negotiable Instrument Is materially altered
without the assent of all the parties liable thereon, it is avoided
except as against a party who has himself made, authorized, or
assented to the alteration and subsequent endorsers. But when an
Instrument has been materially altered and is in the hands of a holder
in due course, not a party to the alteration, he may enforce payment
thereof according to its original tenor. Material alterations consists
of any changes in date: sum payable, Interest on principal; time or
place of payment; number and relation of parties; medium or currency
In which payment Is to be made.
Arbitration. Courts are compelled by statute to make an order
submitting cases for arbitration when moved for by the parties, and
to continue this cause for one term for an award, but not longer with
out consent of parties, or good cause being shown therefor. The
award of the arbitrators may be entered up and enforced as the judg
ment of the proper court whether made In a pending suit or not.
Arrest. There can be no arrest on civil process, except for con
tempt and in cases of alleged lunacy.
Assignments and Insolvency. Every general assignment made
by a debtor, or conveyance by a debtor of substantially all of hie
property In payment of a prior debt, by which a preference or priority
of payment is given to one or more creditors, shall enure to the benefit
of all the creditors equally, but this section shall not apply to mort
gages, pledges, or pawns given to secure a debt contracted contem
poraneously with the execution of the mortgage. All assignments by
a debtor made with intent to hinder, delay, or defraud creditors are
void. All deeds of assignment for the benefit of creditors shall, as
soon as executed, be filed and recorded in the office of the judge of
probate of the county in which the property is situated. Every
judgment confessed, attachment procured by the debtor, or other dis
position of property by which a debtor conveys all, or substantially
all. of his property which is subject to execution in payment or as
security for a debt shall be deemed a general assignment.
Attachment process will issue upon affidavit by the creditor or his
agent of the amount due and that the debtor absconds, or resides,
out of the State, or secretes himself so that process cannot be served
upon him, or is about to remove out of the State, or has or Is about to
fraudulently dispose of his property, or fraudulently withholds money,
chattels, or effects which are liable to the satisfaction of his debts;
plaintiff must give bond in double the amount claimed. Attachments
will issue for the following demands: 1: To enforce the collection of
a debt, whether it be due or not, at the time the attachment, is taken
out. 2: For any moneyed demand, the amount of which can be
certainly ascertained. 3: To recover damages for a breach of 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. 0: When defendant is about to or
has fraudulently disposed of his property or fraudulently withholds
same. One non-resident may sue out an attachment against another
non-resident by making oath that the defendant lias not sufficient
property within the State of his residence wherefrom to satisfy the
debt. Attachments may be sued out in aid of a pending suit when
any of the above grounds exist by making affidavit and executing
bond. Garnishment process will issue in aid of attachment in ail
such cases. Garnishment may be dissolved by giving bond. In all
cases of 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.
Ranks. The national bank system Is In force In this State unoontrolled 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 th's State. Banks of discount and deposit may be established
under the general incorporation laws. Open depositors and savings
depositors on equal footing in case of insolvency.
Any banker who discounts a oill or note at a greater rate than 8
per cent cannot enforce the collection of same except as to the prin
cipal, and if any Interest has been paid it must be deducted from the
principal.
Collaterals. Receipt must be given for if demanded. Pledges or
collaterals not transferable without transfer of the debt; after two
days’ notice in writing collaterals may be sold, by advertlslng.Jor five
days, at public outcry.
Conditional Sales are good between the parties, but void where
personal property delivered to vendee as against purchasers for a
valuable consideration, mortgages and judgment creditors, without
notice, unless in writing and recorded in the office of the probate
judge.
Conditional contracts of sales must be recorded in office of the
Judge of Probate of 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
of more than 80,000 when contract is for a less amount than $200.00.
Conveyances. All persons of the age of twenty-one years, not
laboring under some legal disability, may convey their real estate or
any Interest therein by instrument in writing signed by the grantor,
or his agent duly authorized in writing, and attested by one witness, or
if the grantor cannot write, by two witnesses who are able to write,
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 of age may convey dower in her husband's
lands.and has generally the same rights as married women over twentyone years of age. The husband must join in any conveyance of the
wife’s separate estate. Conveyances, to operate as notice, must be
1735
1736
BANKING AND COMMERCIAL LAWS—ALABAMA
acknowledged and recorded. General acknowledgment must be
signed to make instrument self-proving. Married women must
acknowledge twice in the event the homestead is conveyed. Form
of general acknowledgment is as follows:
The State of Alabama.........................County.
I,.............................................................................. a (style of officer),
hereby certify that............................................. whose name is signed
to the foregoing conveyance and who is known to me. acknowledged
before me on this day, that, being informed of the contents of the
conveyance, he executed the same voluntarily on the day the same
bears date. Given under my hand and seal, this..................day of
.................. A. D.
(Seal)
. .
Notary Public.
No time is required within which conveyances shall be recorded.
They operate as notices from date of delivery to probate judge for
record. (See Acknowledgments.) They may be used as evidence
without further proof of execution. Leasehold estates may be
created to last not exceeding twenty years, but if longer void as to
excess. A married woman must make the following acknowledgment
to a conveyance of a homestead:
State of................County of................
I.......................... Judge of...............(or other officer) do hereby certify
that, on the.................. day of........................ 19...., came before me
the within named ................................... known to me (or made
known to me) to be the wife of the within named...............................
who, being examined separate and apart from her husband touching
her signature to the within................... acknowledged that she signed
the same of her own free will and accord, and without fear, constraint,
or threats on the part of her husband.
In witness whereof, I hereto set my hand this .............. day of
.................... 19....
(Official Character.)
Corporation to make following acknowledgment:
.............................................. that.............................................................
whose name as................................... of the said corporation, Is signed
to the foregoing conveyance, and who is known to me, acknowledged
oefore me on this day that, being informed of the contents of the
conveyance, he, as such officer, and with full authority, executed the
same voluntarily for and as the act of said corporation.
Corporations. Every company, corporation, or association, not
organized under the laws of Alabama, engaged in any other business
than insurance, shall, before engaging in any business In this State,
file in the office of the secretary of state, at the capltol in Montgomery,
an Instrument in writing, under the seal of such company, corporation,
or association, and signed officially by the president and secretary
thereof, designating at least one known place of business in this State,
and an authorized agent residing thereat. If such corporation Is
engaged In any business of insurance, the statement must be filed in the
office of the insurance commissioner. It the agent Is changed, a new
aper must be filed. Held not to apply to corporations selling goods
y traveling agent or sample. Foreign corporations transacting busi
ness In this State without complying with above provisions, for each
offense forfeit to the State $1,000, and any person acting as agent 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.
Courts. Terms and Jurisdiction. The supreme court, except
to Issue writs of Injunction, habeas corpus, quo warranto, and other
remedial and original writs necessary to its supervision of inferior
courts, and impeachments of Judicial officers, has only appellate Juris
diction and cases are tried on the record sent up. Court of appeals
has final appellate jurisdiction In the following cases: 1. When
the 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
of libel, slander, assault and battery, and ejectment. The courts of
ehancery have exclusively equity Jurisdiction. Regular terms of
both twice a year In nearly every county. Chancery courts have
full equity powers. Justices of the peace have jurisdiction of all
Civil causes where the amount in controversy does not exceed $100 In
value, except In cases of libel, slander, assault and battery, and
ejectment. Names of all parties, plaintiff and individual names of
eo-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 of the partners: the Judgment reaches the partnership property
alone. Any one partner, or his personal representative, may be
sued alone on a partnership obligation. Non-residents must give
security for costs when suit Is commenced or within such time there
after as the court may direct. Money may be deposited with the
olerk Instead of sureties.
Days of Grace are abolished. (See Negotiable Instruments.)
Depositions. In cases at law, depositions may be taken of wit
nesses who cannot be present at the trial in the following cases:
When the witness is a female; when the witness is too sick to attend
court; when the witness resides more than 100 miles from the place of
trial, or is absent from the State; when the witness Is about to leave
the State, and not return in time for the trial; when the witness is the
sole witness of the facts; when the witness is one of the officers desig
nated In Code No. 4030. Affidavit must be made of one of the above
tacts, and of the materiality of the witness. May be taken on Inter
rogatories by a commissioner appointed by the court for that purpose.
The commissioner may be any suitable person, need not be an officer.
In equity suits, where witnesses live within 100 miles of the place of
trial, depositions may be taken by oral examination before the regis
ter, or a special examiner, or commissioner appointed for the purpose.
Descent and Distribution. The real estate of persons dying
Intestate, in this State, descends, subject to the payment of debts and
the widow's dower, as follows: First to the children of the Intestate
or their descendants per stirpes In equal parts. Next, to the parents,
If they survive, in equal parts. If only one parent survives, then
one-halt 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
bo husband or wife or none of the foregoing living, then to the next
of kin in equal degree in equal parts. If there are no next of kin
it escheats to the State. The personal estate Is distributed the same
as the real estate, except that if there are no children the widow is
entitled to all of the personal estate. If but one child she takes onehalf If not more than four children to a child’s part and if more
C
than four to one-fifth. Posthumous children take as others. Illegiti
mate children Inherit from their mother. The husband upon the
death of the wife Is entitled to half of her personal estate absolutely,
and to the use of all of her real estate for life, unless he has been divested
of all control over her estate by a decree of the chancery court.
Damages recovered by personal representative for death of deceased
are distributed according to statute of distribution and are exempt
from payment of debts.
Dower. Unless the wife has relinquished her right of dower In the
manner provided by statute she is, upon the death of the husband,
entitled to dower In all lands of which the husband was seized In fee
during the marriage, or of which another was seized to his use or to
which he had a perfect equity, having paid all the purchase money
therefor. The dower Interest is one-half when the husband leaves no
lineal descendants, and one-third when the estate is insolvent or the
husband leaves children or their descendants. If the wife has at the
deatn of the husband a separate estate equal in value to her dower
Interest, she shall not have dower, and if of less value is only entitled
to such amount as with her estate will make the full value of the dower.
Executions. Property subject to: 1st: On real property to
which the defendant has a legal title or a perfect equity, having paid
the purchase money, or in which he has a vested Interest, in possession
reversion, or remainder, whether he has the entire estate, or is entitled
to it in common with others. 2d: On personal property of the defen
dant (except things in action), whether he has the absolute title there
to, or the right only to the possession thereof for his own life, the life
of another, or a less period. 3d: On an equity of redemption in either
land or personal property, when any Interest less than the absolute
title is sold. The purchaser is subrogated to all the rights of the
defendant, and subject to all his disabilities. Writ of fieri facias Is a
lien only within the county in which it Is received by the officer, on
lands and personality of defendant subject to levy and sale, from the
time only that the writ is received by such officer and continues as
long as writ is regularly delivered to the sheriff without the lapse of an
entire term. A statement of a Judgment certified by the clerk of the
court may be filed In the office of the judge of probate, which makes
the judgment a lien within the county in which it is 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.
Exemptions. Homestead not exceeding 160 acres or $2,000 in
value.
Personal property to the amount of $1,000. Exemption of personal
roperty may be waived by instrument in writing except as to certain
ousehold furniture and provisions and wages to amount of $25.00
per month.
Fraud. Obtaining money or goods on credit under false color or
pretense of carrying on business, or under false representation of
pecuniary condition, with Intent to defraud, or bringing into the State
money or goods so obtained, punished as larceny.
Statute of Frauds. In the following cases, every agreement, or
note or memo, thereof, expressing the consideration, is in writing and
signed by the party to be charged: 1st. Every agreement which by
its terms is not to be performed within one year from the making
thereof. 2d. Every special promise by an executor or administrator
to answer damages out of his own estate. 3d. Every special promise
to answer for the debt, default, or miscarriage of another. 4th. Every
agreement, promise, or undertaking, made upon consideration of
marriage, except mutual promises to marry. 5th. Every contract
for the sale of lands, tenements, or hereditaments, 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.
Garnishment may Issue in any case after suit commenced upon
affidavit of necessity and bond as In attachment cases, or after Judg
ment, without bond.
Holidays. The following are the legal holidays; Sunday, Christ
mas Day, First day of January, 19th day of January, 22nd day of
February, Mardi Gras Day, 13th day of April, 26th day of April, Tues
day before Ash Wednesday, 3rd day of June, 4th day of July, first
Monday in September, 12th day of October, 2nd Tuesday in October,
and day designated by the Governor for public Thanksgiving. If
Christmas Day, or the first day of January, or the 19th day of Jan
uary, or the 22nd day of February, or the 13th day of April, or the
26th day of April, or the 3rd day of June, or the 4th day of July falls
on Sunday, the Monday following is the holiday. If any paper becomes
due on a holiday, it must be taken as due on the next succeeding busi
ness day.
Husband and Wife. The wife has full legal capacity to contraot
as if she were sole, except that she can not alienate or encumber her
real estate without the husband Joining In the conveyance, unless the
husband be Insane or has abandoned her, or is a non-resident, or Is
Imprisoned under a conviction for crime lor a period of two years or
more, in which cases the wife may convey it as if she were sole.
Husband and wife may contract with each other, but the wife can
not be surety for the husband. All of the property and the earnings
°i llLe
£re SST seParate estate, and are not liable for the debts of
the husband. The wife must sue and be sued alone for all matters
relating to her separate estate or contracts, and for all torts to her
person or property. The chancery court has power to relieve of any
or all disabilities of coverture.
Interest. Legal rate is 8 per cent, and same is allowed on ail open
accounts, judgments, and decrees. Usury forfeits all interest and
any sums paid as interest on an usurious contract shall be credited on
the principal.
Judgments of courts of record are proved by a certified transcript.
Judgment not a lien, but when a certified statement thereof, made by
the clerk of the court is filed in the office of the probate judge, it
becomes a lien on all property of the defendant therein In the county,
which is subject to execution for ten years, to enforce which execution
may issue at any time within that period. Execution received by
sheriff during life of defendant may be levied after his decease or alias
execution issued and levied if there has not been lapse of entire term
do as to destroy lien originally created. Above applies to executions
from circuit and chancery courts. An execution issued by a Justice
of the peace Is a lien only frfim time of Its levy. Ail agreements to
confess Judgment, or to authorize another to confess Judgment, made
before the commencement of the suit in which such Judgments are
so confirmed are void.
Mechanics’ Elen.
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.
Elen for Kent. 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.
BANKING AND COMMERCIAL LAWS—ALASKA
Limitations. Notes and stated accounts, six years; open accounts,
three years; sealed Instruments, real actions, and motions against
officers, ten years; Judgments, twenty years; actions on the case, one
year. Bar created by statute can only be removed by a partial pay
ment, made on the contract before the bar is complete, or by an uncon
ditional promise in writing. If anyone entitled to bring an action,
or make an entry on land, or defense founded on title to real estate,
be at the time such right accrues, within the age of twenty-one years,
or Insane or imprisoned on a criminal charge for a term less than life,
he shall have three years, or the period allowed by law, for bringing
such action. If the period allowed by law be less than three years, after
the termination of such disability to bring such suit, etc., but no action
can be commenced after twenty years. Statutes of limitation apply
to married women’s separate estates. Actions founded on a promise
In writing not under seal, or for trespass to person or property, must
be brought within six years. Statutes of limitation are made 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 Women. (See Husband and Wife.)
Mortgages are executed and acknowledged In the same manner as
deeds. May be foreclosed by bill in equity, or If there be a provision
to that elfect, by sale under power, upon such default as authorized
a sale. All mortgages are void against creditors or purchasers without
notice, unless recorded. Mortgages operate as notice from day of
delivery to probate Judge for record. There is no fixed time within
which they shall be recorded. Homestead realty cannot be mort
gaged or otherwise aliened without the voluntary signature and assent
of wife, evidenced by acknowledgment, upon private examination
separate and apart from the husband, and certified. 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 Instruments. Must be payable In money and must
contain an unconditional promise to pay a sum certain on demand or
at a fixed or determinable future time; must be payable to a specified
person or bearer; may be In Installments and contain provision that
on any default the whole shall become due; with exchange fixed or
current rate, interest, and attorney’s fees for collection; may authorize
sale of collaterals but cannot authorize 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; can waive exemption from
execution; need not specify value given nor place where drawn or
payable; if issued, accepted, or endorsed when overduo it is payable
on demand; may be payable to two or more payees jointly, or one or
more of several payees, or to the estate of a deceased person; absence
or failure of consideration a defense against one not a holder in due
course and partial failure a defense pro tanto. One not a party to
Instrument placing a signature in blank before delivery becomes an
endorser. Every endorser engages that on due presentment it shall
be honored or that he will pay the amount to holder or any subsequent
endorser who may be compelled to pay; no days of grace; when
maturity falls on Sunday or holiday payment is due on next business
day; if due on Saturday must be presented on next business day, but
if payable on demand holder may prasent same before noon on Satur
day. Fraud and circumvention in procuring execution of instrument
Is a defense against any holder.
Powers of Attorney. Powers of attorney or other instruments
conferring authority to convey property 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 of attorney to relinquish dower must be
executed by husband and wife jointly. Her signature must be
acknowledged as required for conveyances of land.
Presentment. Is not necessary to charge one primarily liable
except In case of bank notes; if payable at special place ability and
willingness to pay It there at maturity Is equivalent to a tender; If
not on demand It must be presented on day It falls due, if on demand
then within a reasonable time after Its issue, except a bill of exchange
must be presented within reasonable time after Its last negotiation.
Probate Law. A court of probate, consisting of one judge. Is
established for each county In the State. This court has jurisdiction
of the probate of wills, of granting letters testamentary and of admin
istration. and the repeal or revocation of the same; of the settlements
of accounts of executors and administrators, of the sale and disposition
of the real and personal property belonging to, and the distribution of.
Intestates’ estates. Also of the appointment, removal, and settlements
of guardians for minors and persons of unsound mind, the binding out
of apprentices, the allotment of dower, and the partition of land belong
ing to Joint owners. A court of probate 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.
Promissory Note. Must be unconditional promise In writing to
pay on demand or at fixed or determinable time a sum certain in money
to order or bearer, and where drawn to maker s own order is not com
plete until endorsed by him; may be In Installments.
Protest. (See Negotiable Instruments.)
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 bands
of drawee and he Is not liable unless he accepts.
Replevin. Writ of replevin lies to recover property in custody of
an officer of the law, and Is limited to this. The action of detinue
lies to recover personal property in all other instances.
Sales in Bulk. Sales of all or substantially all of stock of mer
chandise except in regular course of trade is prima facia fraudulent
and void against creditors unless they are notified in writing prior to
the sale in manner prescribed by statute.
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 slxty-flve per
cent on each $100.00, for State purposes. County may levy a like
amount. Municipalities may levy a tax not to exceed one half of
one per cent. The purchaser of lands sold for delinquent taxes
receives from the collector a certificate of purchase, containing a
1737
description of the property, the date and amount of assessment,
taxes, costs, fees, eto., 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
Is 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
of lien of state or county, or the property for payment of taxes for
which Bold. All cotton factories or cotton mills which shall be
constructed In this State within five years shall be exempt from
taxation for a period of ten years, provided such mills represent an
Investment of $50,000.
Wills. All wills of real or personal property must be In writing
signed by the testator and declared his last will and testament in the
presence of two witnesses who must sign as witnesses in the presence
of tostator and each other. Unwritten will of personal property valid
only when the property does not exceed $500 in value, and must be
made during last sickness by testator at his home. Persons present
must be called on to witness that it is testator’s will and must be
reduced to writing by one of the witnesses within six days. Minor
over eighteen may make a will of personal property. No will effective
until probated. May be contested in probate or chancery court.
SYNOPSIS OF
THE LAWS OF ALASKA
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by O. D. Oochkan, Attorney at Law, Nome.
(See Card In Attorneys* List.)
Acknowledgments. (See Deeds.)
Actions. The distinction between actions at law and suits la
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 or prevention of private wrongs. Every
action must be prosecuted In the name of the real party In Interest,
except that an administrator or executor, a trustee of an express trust,
or a person expressly authorized by statute may sue without Joining
with him the person for whose benefit the action Is prosecuted; but
the assignment of a thing in action not arising out of contract is not
authorized.
Affidavits. An affidavit or deposition taken out of Alaska, other
wise than upon commission, must be authenticated as follows: 1.
It must be certified by a commissioner appointed by the governor of
Alaska to take affidavits and depositions In the state, territory, district
or country where taken; or, 2, It must be certified by a judge of a
court of record having a clerk and a seal to have been taken and 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.
Allens. 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 Hens upon lands, but such lands must be sold within ten
years. Any alien may also acquire and hold lots or parcels of land
In any Incorporated or platted city, town, or village, or In any mine
or mining claim, but Is not authorized to acquire title from the United
States to any of the public lands.
Arrest. The defendant may be arrested In the following civil
actions: 1. For the recovery of money or damages when the 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.
Attachment. The plaintiff, at the time of issuing the summons
or afterwards, may have the property of defendant attached In an
action upon a contract, express or Implied, for the direct payment of
money, and, 1, which Is not secured by mortgage, lien, or pledge upon
real or personal property, or If so secured, when the security has been
rendered nugatory by the act of the defendant; or, 2, against a non
resident defendant. The writ Issues whenever the plaintiff, or any
one In his behalf, files an affidavit showing that defendant Is Indebted
to plaintiff (specifying the amount of indebtedness over and above all
legal set-offs or counter-claims) upon a contract, express or Implied,
for the direct payment of money; that the payment has not been
secured by mortgage, lien, or pledge upon real or personal property;
and that the sum for which attachment Is asked Is an actual, bona fide,
existing debt due and owing from plaintiff to defendant: and that the
attachment Is not sought nor the action prosecuted to hinder, delay,
or defraud any creditor of the defendant. Plaintiff muBt also file an
undertaking, with one or more sureties, Ina sum not less than $106,
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.
1738
BANKING AND COMMERCIAL LAWS—ALASKA
Chattel Mortgages. Any Interest In personal property, capable
of 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 by the affidavit of all the parties thereto that the same is
made In good faith to secure the amount named therein, and without
design to hinder, delay, or defraud creditors, and be acknowledged
and died. The mortgage must be acknowledged by the mortgagor
as a conveyance of real property is and be filed in the office of the
recorder of the precinct where the mortgagor resides and of the pre
cinct where the property Is. Within thirty days next preceding the
expiration of one year from the filing, a true copy of the mortgage,
with a verified statement of the interest of the mortgagee In the 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 may be Inserted In a mortgage
authorizing the marshal to execute the power of sale therein granted
to the mortgagee.
Corporations. 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 of the United States or any state or territory
shall, before doing business within the district, file In the office of the
secretary of the district and In the office of the clerk of the district
court for the division wherein It intends to carry on business a duly
authenticated copy of Its charter or articles of Incorporation, and also
a statement verified by the oath of Its president and secretary and
attested by a majority of Its board of directors. Thereafter such
statement must also be so filed within thirty days after July first of
each year.
Deeds. A conveyance of lands, or of any estate or Interest therein,
may be made by deed, signed and sealed by the person from whom
the estate or Interest Is Intended to pass, and acknowledged or proved,
and recorded, without any other act or ceremony. A quit-claim deed
passes all the estate which the grantor could convey by deed of bargain
and sale. No covenants are implied In any conveyance. The term
"heirs," or other words of Inheritance, are not necessary to create 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
oourt, notary public, or commissioner within the district, and the
officer taking the acknowledgment must Indorse thereon a certificate
of acknowledgment and the true date of making the same under his
hand.
Depositions. The testimony of a witness, In the district, may
be taken by deposition. In an action, at any time after the service of
the summons or the appearance of the defendant, and In a special
proceeding after a question of fact has arisen, when, 1, the witness is
a party to the action or proceeding, by the opposite party; 2, the
witness’s residence Is more than one hundred miles from the place of
trial; 3, the witness Is about to go more than one hundred miles beyond
the place of trial; 4, the witness Is too Infirm to attend the trial; or, 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
court selected by the officer Issuing the commission.
The amount of the commissioner’s fees should be indorsed upon the
deposition.
Descent and Distribution. The real property of an Intestate
descends as follows: 1. In equal shares to his or her children and
to the Issue of any deceased child by right of representation; and
if there be no child of Intestate living at the time of his or her death,
to all his or her other lineal descendants; and If all such descendants
are In the same degree of kindred to the Intestate, they take equally;
otherwise, by representation. 2. If Intestate leave no lineal descend
ants. to hls 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 hls 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
lineal descendants, neither husband nor wife, nor father, brother,
nor sister, such real property descends to hls 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 hls next of kin
in equal degree, excepting that when there are two or more collateral
kindred In equal degree but claiming through different ancestors,
those who claim through the nearest ancestor are preferred. 6. If
Intestate leave one or more children, and the Issue of one or more
deceased children, and any of such surviving children die under
age without having been married, all such real property that came
to’such deceased child by Inheritance from such Intestate descends
In equal shares to the other children of such intestate and to the Issue
of any other children who have died, by right of representation. But
If ail the other children of Intestate be dead, and any of them have
left Issue, such real property so Inherited by such deceased child
descends to all the issue of such other children of the Intestate In
equal shares. If they are In the same degree of kindred to such deceased
ohlld; otherwise, they take by right of representation. 7. If Intes
tate leave no lineal descendants or kindred, such real property escheats
to the United States.
Dower and Curtesy. The widow of every deceased person is
entitled to dower, or the use during her natural life of one-third part
In value of all the lands whereof her husband died seized of an estate
Ot When a^y^nan and his wife are seized In her right of any estate of
Inheritance In lands, the husband, on the death of hls wife, holds the
lands for hls life as tenant thereof by the curtesy, altbougn such
husband and wife may not have had issue born alive.
Evidence. No person may be exoluded as a witness on account of
being a party or Interested In the event of an action or proceedings,
having been convicted of a crime, or hls opinions on matters of religious
belief. Persons of unsound mind and children under ten years of age
who appear incapable of receiving just impressions of the fact respect
ing which they are examined or of relating them truly may not be
witnesses. An attorney may not, without his client's consent, be
examined as to communications made by his client to him or hls advice
thereon. A priest may not, without the consent of the person making
the oonfesslon, be examined as to any confession made to him In hls
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 hls patient, be examined, In a civil action, or proceeding,
m to Information acquired In attending the patient which was neces
sary to enable him to prescribe or act.
Executions. (See Judgment and Execution.)
Executors and Administrators. When a 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 oharges. 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 hls property, In the order of the
priority of the liens. 7. Debts due for wages earned within ninety
days Immediately preceding death of decedent. 8. All other claims.
Exemptions. 1. Earnings of Judgment debtor, for personal ser
vices rendered within sixty days next preceding the levy of execution
or attachment, when necessary for the use of hls 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 hls 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
Include not more than one yoke of oxen, or a span of horses or mules,
or two reindeer, or six dogs. 5. The following property. If owned
by the head of a family and in actual use or kept for use by and
for hls family, or when being removed from one habitation to another
on a change of residence: Ten sheep, with one year’s fleece or the
yarn or cloth manufactured therefrom; two cows and five swine:
household goods, furniture, and utensils to the value of $300; also
food 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 hls family In a place of
publlo 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.
Garnishment. (See Attachment.)
Homestead. The homestead of any family, or the proceeds thereof,
Is exempt. Such homestead must be the actual abode of, and owned
by, such family or some member thereof, and not exceed $2,500 In value
nor exceed 160 acres In extent. If not located In a town or city 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 suoh
homestead be married, the mortgage must be executed by husband
and wife.
Interest. The legal rate of Interest Is 8 per cent, but on contracts
Interest at the rate of 12 per cent may be charged by express agree
ment of the parties. If usurious Interest has been received or collected,
the party paying the same, or hls 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.
Judgment and Execution. A Judgment Is docketed imme
diately after entry. At any time thereafter while execution may
Issue a certified transcript of the docket may be filed In the office
of the recorder of any recording district, and from the date of docket
ing a judgment or transcript thereof the judgment Is a lien upon
all the real property of the defendant within the recording district
or districts where docketed, or which he may afterwards acquire
therein during the time an execution may Issue. If no execution
Issues within ten years the lien expires, but is renewed if afterwards
leave is given to issue execution and a transcript of the docket ol
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 hls representatives, to whloh
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, hls 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.
Licenses. (See Taxes.)
Liens. Every mechanic, artisan, machinist, builder, contractor,
lumber merchant, laborer, teamster, drayman, and other person
performing labor upon or furnishing material of any kind to be used
In the construction, development, alteration, or repair, either In whole
or In part, of any building, wharf, bridge, flume, ditch, mine, tunnel,
fence, machinery, or aqueduct, or any structure or superstructure,
has a lien upon the same for the work or labor done or material fur
nished at the Instance of the owner of the building or other improve
ment or his agent; and every contractor, sub-contractor, architect,
builder, or other person having charge of the work. In whole or In
part. Is, for this purpose, deemed the agent of the owner.
Limitations. Civil actions must be commenced within the
following periods after the cause of action accrued: Within ten
years—action for the recovery of real property, or the possession
thereof; upon a judgment or decree of any court of the United States,
or of any state or territory within the United States; upon a sealed
Instrument. Within six years—action upon a contract or liability,
express or Implied, except Judgment or sealed Instrument; upon a
liability created by statute, other than a penalty or forfeiture: for
waste or trespass upon real property; for taking, detaining, or Injuring
personal property. Including an action for the specific recovery thereof.
BANKING AND COMMERCIAL LAWS—ARIZONA
Within three years—action against a marshal, coroner, or constable,
• upon a liability incurred by the doing ot an act In his official capacity
or In virtue of his office, or by the omission of an official duty. Including
the non-payment of money collected upon execution, but not an
action for an escape; action upon a statute for penalty or forfeiture,
where the action is given to the party aggrieved, or to such party
and the United States, except the statute prescribe a different limita
tion Within two years—action for libel, slander, assault, battery,
seduction, false imprisonment, or for any Injury to the person or
rights of another not arising on contract; upon a statute for a 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 Women. The property and pecuniary rights of every
married woman at the time of marriage, or afterwards acquired
by gift, devise, or Inheritance, or by her own labor, are not subject
to the debts or contracts of her husband, and she may manage, sell,
oonvey, 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 wile, and liabilities Incurred, and the same enforced
by or against her to the same extent and In the same manner aB If
she 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 prlma facie
evidence of her separate ownership, and property not so reg
istered Is deemed prlma facie the property of the husband.
Neither husband nor wife Is liable for the debts or liabilities of the
other Incurred before marriage. Husband and wife may make conveyances and transfers and create liens between themselves, and either
may constitute the other his or her attorney In fact. A woman
becomes of age at twenty-one or upon being married according to law.
Mortgages. Mortgages are executed, acknowledged, and recorded
In the same manner as deeds. No covenant Is Implied for the
ayment of the sum Intended to be secured. Record of assignment
i 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 and Bills of Exchange. On all bills of exchange and
all negotiable promissory notes, orders, and drafts payable at a
future day certain within the district, grace Is allowed; but grace
Is not allowed on bills of exchange, notes, or drafts, payable at sight
or on demand.
Records. An unrecorded conveyance of real property Is void
as against any subsequent Innocent purchaser In good faith and for
a valuable consideration whose conveyance Is first duly recorded.
A commissioner is ex-officio recorder of a recording district, the
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 tne possession thereof; that the property Is unlawfully detained
by defendant; the alleged cause of detention; that the same has not
been taken for a tax assessment or fine, pursuant to a statute, or
seized under an execution or attachment against the property of
the plaintiff; or. If so seized, that It Is exempt; and the actual value
of the property
Service. (See Actions.)
Supplementary Proceedings. (See Judgment and Execution.)
Taxes. Every person or corporation prosecuting or attempting
to prosecute any of the following lines of business within the district
must first apply for and obtain license so to do from the district
court or a subdivision thereof, and pay per annum for such license
for the respective lines of trade and business as follows: Salmon
oannerles 4 cents per case; salmon salterles, 10 cents per barrel;
fish oil works. 10 cents per barrel: fertilizer works, 20 cents per ton;
freight and passenger tranportatlons lines, propelled by mechanical
Dower 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
qjj lumber sawed: quartz mills, $3 per stamp; mercantile establish
ments and manufactories doing a business of under $4,000 per annum,
$10 and tn 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
Is revoked by his subsequent marriage. Children or descendants
of children not named or provided for In the will take as If testator
had died Intestate. A mariner at sea or soldier In military service
may dispose of his personal property as at common law. Proof
of nuncupative will must be made within six months, and the words
or their substance reduced to writing within thirty days after they
are spoken. A person owning property in, but not an Inhabitant
of. the district may devise or bequeath the same according to the
laws of his domicile. If such will be probated without the district,
eoples 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 reoord, may be recorded, admitted In evidence, or contested
and annulled as If executed and proved within the district.
E
1739
SYNOPSIS OF
THE LAWS OF ARIZONA
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by C. B. Wilson & Gerard T. Wall, Attorneys at Law.
Flagstaff, Arizona.
Accounts. When stated draw Interest; when action Is upon
Itemized account and affidavit of party, his agent or attorney is
attached, stating that such "account Is, 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 prlma facie evidence,
unless one day before trial, defendant files written denial of any Item
under oath.
Acknowledgments. The form of an ordinary certificate of ac
knowledgment shall be substantially as follows;
“State of Arizona,
)
County of....................................................................... )M
This instrument was acknowledged before me this.......... day
of.................. A. D..................... by (if by 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 of person
as executor, attorney In fact, or other capacity; if by an officer or
officers of a corporation, then insert name or names of such officer
or officers as the president or other officer of such corporation, naming
Notary Public.
(Or other officer)
(My 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 of such state or territory, shall be valid and en
titled to record as if executed in accordance with the laws of this
state.
Actions. Distinction In forms between law and equity are abol
ished. Pleadings are; Complaint and answer, and In some cases a
reply.
Administration of Estates. Lie in Superior Court. No public
administrator. Where person dies Intestate letters shall Issue.
Affidavits. May be taken before any officer authorized to take
acknowledgments.
Aliens. Unless rights are secured by treaty cannot hold land la
the state, may acquire by inheritance, or In ordinary course of jus
tice tn the collection of debts; may acquire liens on real estate, may
lend money and secure same on real estate, but title so acquired’must
be sold within five years; may acquire patented mines and hold
stock in domestic corporation owning unpatented mines.
The laws provide that the laws of the state pertaining to aliens
shall not be construed as to conflict in any manner with any rights
existing under and by virtue of any treaty of the United States
with any other country.
Appeals. Appeals are allowed from justice of peace to superior
court in certain cases and from superior court to supreme court
where amount involved is $200 or over.
Arbitration. There are statutory provisions which are not
exclusive of the common law arbitration.
Arrest. Abolished In civil cases, debtor fraudulently removing
property out of territory or concealing It may be prosecuted criminally.
Attachment. Writ will Issue on affidavit showing: 1. That
defendant Is Indebted to plaintiff upon a contract, express or Implied,
for the direct payment or money and that such contract was made or
Is payable In this Territory, and that the payment of the same has not
been fully secured by mortgage, lien, or pledge of personal property,
or If originally so secured, that such security has, without any act of
plaintiff or the person to whom the security was given, become value
less, and shall specify the character of the Indebtedness, that the same
Is due to the plaintiff over and above all legal set-offs or counter-claims,
and that demand has been made for the payment of amount due: or.
2. That defendant Is Indebted to plaintiff, stating amount and char
acter of debt; that same Is due and payable over and above all legal
set-offs and counter-claims, and that defendant Is a non-resident of
this Territory or Is a foreign corporation doing business In this Terri
tory; or, 3. That an action Is pending between the parties, and that
defendant Is about to remove his property beyond the Jurisdiction ot
the court to avoid payment of judgment; and, 4. That the attach
ment Is not sought for a wrongful or malicious purpose, and that the
action Is not prosecuted to hinder or delay any creditor of defendant
5. No such attachment shall Issue until suit has been duly Instituted,
but It may be Issued In a proper case either at the commencement of
the suit or at any time during Its progress. 6. The writ may Issue,
although plaintiff’s debt or demand be not due under specified facts of
Intent to defraud; no final Judgment shall be rendered until such debt
or demand shall become due. Writ may issue at or after action began
upon plaintiff or some one in his behalf filing the affidavit, and upon
filing a bond with two sureties in an amount equal to amount sued for
Sureties can be compelled to Justify upon notice. When more than
one attachment Is levied on same property writs take priority accord
ing to time of levy. (See Liens. Garnishment.)
Banks—Savings and Loan. 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 trans
BANKING AND COMMERCIAL LAWS—ARIZONA
1740
acting Its business. To purchase and convey evidence of debt except
national, territorial, and municipal Donas must have a capital of
$100,000. Married women and minors may transaot business with
such banks. Are required to have license and are examined by the
bank examiner. Provisions are made for the contents of the charter.
Bills and Notes. The negotiable Instrument code adopted by the
American Bar Association Is In force. Joint obligor may be released
without releasing others. (See Holdings.)
Bonds. Any standard surety company, organized under laws of
United States or of any state, may execute bonds In judicial proceed
ings within the state when they have complied with license laws.
(See Guaranty Companies )
Chattel Mortgage. To be valid against others than the parties
thereto, chattel mortgage must set out the residence ot the mortgagor
and the mortgagee, the rate of Interest to be paid and time and plaoe 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 the mortgagee
and the change ot possession must be actual and continued, unless the
mortgage or a true copy thereof shall be forthwith deposited and died
In the office of the recorder of the county where the property shall
then be situated. Removal sale, or other disposition of mortgaged
property without consent of mortgagee entitles mortgagee to Imme
diate possession of it. and such removal, transfer, or sale, or subsequent
encumbrance Is felony. Il mortgagee permits mortgaged property to
be removed to another county, he shall within one month record his
mortgage in such other county. Chattel mortgage may be fore
closed In Justice court If amount of debt does not exceed S300; other
wise In superior court. Mortgagee may obtain possession of property
en default and sell after notice which must be served on owner. U pon
stock of goods, wares, and merchandise with continued possession In
mortgagor, void. If copy Is filed with recorder, original must be
acknowledged, and copy certified to by county recorder.
Claim and Delivery. (See Replevin.)
Collaterals. No statutory provisions—common law prevails.
Community Property.
(See Conveyances.)
Conditional Sales. Where title remains In vendor until purchase
price Is paid, void as to persons not parties thereto, and persons
without notice, unless subscribed, acknowledged, and filed with
county recorder.
Contracts. (See Bills and Notes.) One or more obligors on a
Joint or Joint and several Instrument may be released without releasing
the others, and may be sued separately under certain conditions with
out releasing the others. Married women may contract as If sole.
Conveyances. Conveyances 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 limited 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 of the word
“grant” or "convey" implies the following covenants and none
other: 1. That previous to the time of the execution of 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 of the execution of such conveyance
free from incumbrances. Married women seventeen years of age
and upward may convey their own lands without being joined by
their husbands. (See Acknowledgment, Dower, Husband and Wife,
Homestead.)
Corporation Commission, organized under Chapter 90, First
Bession, Laws 1912. Has general supervision of corporations.
Corporations in General. Any number of persons may become
incorporated for the transaction of any lawful business. Before com
mencing any business, they must adopt articles of incorporation
which shall be signed and acknowledged by them as deeds and be
filed in the office of the Corporation commission at the State Capital
and a certified copy thereof filed In the office of the County Recorder,
In each county in the state in which they transact business. The
articles of incorporation must contain: 1. The name of corpo
rators, and its principal place of transacting business. 2. The general
nature of the business proposed to be transacted. 3. The amount of
oapltal stock authorized and the times when and conditions upon
which it Is to be paid In. 4. The time of the commencement and
termination of the corporation. 5. By what officers or persons 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-thlrds 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 of Corporation Com
mission an appointment of agent who is a bona fide resident of 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.
76 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 of agent. $5.00. Where charter
provides assessments may be levied on shares to par value (1907).
Corporations, Foreign. Before It can transact business It must
file certified copy of Articles with Corporation Commission and
county recorder in county ot principal place of business, also an
appointment ol agent upon whom a service personal to the corporation
may be made.
Corporations, Insurance.
May be organized under provision
peculiarly applicable to insurance companies.
Corporations, Railroad. Are organized under a statute espe
cially providing for them.
Corporations, Savings and Loan. (See Banks and Banking.)
Corporation Stock, Transfer of. Transfer of stock shall not be
valid except as between the parties thereto, until the same Is regularly
entered upon the books of the company, so as to show the names of the
Demon by whom and to whom the transfer Is made: the number of their
designation of the shares, and the date of the transfer.
Costs. Plaintiffs who are non-residents, or those who own no
DroDerty upon which execution may be levied, are required to give
security for. within ten days after order made; bonds for, must
authorize Judgment to be entered against sureties.
Courts. Are the Supreme Court of the State, the U. 8. district court
for the District of Arizona: one superior court for each County, except
In counties having over certain population in which event two superior
courts, justices of the peace, police courts, recorders of cities. The
superior court of the several counties is a court of general jurisdiction,
both civil and criminal. It has both original and appellate jurisdiction.
Its original jurisdiction extends to all civil cases where the amount
involved exceeds $200 exclusive of interest, and In all cases involving
the title to or possession of real estate. Justice courts have general
jurisdiction when amount in controversy does not exceed $200.00,
except when title to real estate is Involved. (See Jurisdiction.)
Creditors* Bills. No statutory provisions.
Days of Grace. None.
Depositions. May now be taken either upon oral examination,
and cross-examination or upon written interrogatories and cross
interrogatories, as is generally provided.
Descent and Distribution. (See Savings Banks.) The law of
community property prevails. The separate estate of an Intestate,
when he or she shall die leaving surviving no husband or wife, shall
descend as provided. When an Intestate leaves surviving a wife or
husband another method is provided. Children of the Intestate
brothers, sisters, uncles and aunts, take per capita. All property
belonging to the community estate of the husband and wife shall go
to the survivor. If the deceased spouse have no child or children; If
the deceased have a child or children, his or her surviving spouse will
take one-half, and the other half goes to such child or children. The
community property always passes charged with the debts against
it. Intermarriage between man and woman to whom a child or
c? Sren bad before been bora, 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.)
Dower. Dower Is abolished.
Evidence. The common law rules have not been codified. Parties
may be examined and the other side not concluded thereby. Statutes
of other states and territories purporting to be printed under authority
may be read. No one is Incompetent to testify because of religious
belief. Certified copies of all records In territory may be read. Certi
fied copies of records of all notaries may be read. Court may order
Inspection or copy of documents.
Executions. Upon a judgment of superior court, executions may
be Issued to any county. Lieu of dates from levy, aud If on real property. the description is endorsed on execution and filed with county
recorder. A range levy may be made upon all of stock under a certain
brand in same manner as upon real estate. (See Judgment, Liens)
Proceedings supplemental to execution—when returned unsatisfied
creditor Is entitled to an order requiring debtor to answer concerning
his property, but not elsewhere than in the county of his residence
Third parties may, upon affidavit, be required to surrender property’
Court or Judge may order suit brought to determine the denial of
owning or of having property.
Exemptions. Every person who is the head of a family and
whose family resides within this state, may hold as a homestead
exempt from attachment, execution and 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 of the County
Recorder on county where property Is situated. Such homestead
exempt from date of 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 of public worship. 3. A lot in any burial ground
4. Necessary household, table and kitchen furniture, including viz5. The tools or Implements of a mechanic or artisan necessary to
carry on his trade: etc. 6. The sewing machine and implements
of 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 of 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 of 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 of his profession, with food for such horsea
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 dollars in value. 14. The
library and philosophical and chemical or other apparatus belonging
to and used for the instruction of youth In any university, college,
seminary of 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 benefits 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
of any levy upon or sale under execution of 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 of the minor child of any debtor or
the proceeds thereof by reason of any liability of such debtor not
contracted for the special benefit of such minor child. 20. One
half of 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 of attachment, garnishment or execution when it
appears by the affidavit of the debtor or otherwise that such earnings
are necessary for the use of 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
of 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 of such property so long as such property remains
In the possession of the original purchaser. (See Homestead.Liens.)
Frauds and Fraudulent Conveyances. Agreements must be In
writing and signed by the parties to be charged: 1. By an executor
or administrator to answer for the debt of his testator or Intestate out
of his own estate. 2. By a person to answer for the debt, default or
miscarriage of another. 3. To charge any person upon an agreement
made upon consideration of marriage. 4. For sale of real estate or
lease thereof for a term longer than one year. 5. Those which are
not to be performed within the space of one year after the making
BANKING AND COMMERCIAL LAWS—ARIZONA
thereof. Every gift, conveyance, or assignment, or transfer, or
charge upon any estate, real or personal; any suit commenced on
decree, judgment, or executions suffered or obtained, or any bond
or other writing given with intent to delay, hinder, or defraud credit
ors, purchasers or other persons, shall to such persons be void. All
bargains, sales, and other conveyances of lands, tenements, and here
ditaments, deeds of settlement of marriage, deeds of trust, and mort
gages, 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
upon 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
by will, or unless actual possession shall have come to and remained
with the donor or some one claiming under him. Fraudulent Intent
is a question of fact and not 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 of
like significance or Import, and shall fall to disclose the name of his
rinclpal, or partner, or other person who may be Interested in such
usiness by a sign in letters easy to read, placed conspicuously at the
place where such business is transacted, or if any person shall transact
business In his own name, without any such addition, all the property,
stock, money and choses in action used or acquired in such business
except such property as may be exempt from execution, shall, as to
the creditors of any such person, be liable for his debts, and be. In all
respects, treated In favor of his creditors as his property. Criminal
prosecution for fraud is provided. (See Conditional Sale.)
Garnishment. Writ may Issue; 1. Where writ of attachment
has Issued 2 Upon affidavit that the debt is Just due, and unpaid,
and that defendant has not, within affiant’s knowledge, property In
his possession subject to execution sufficient to satisfy such debt, and
that the writ Is not sued out to injure either the defendant or garnishee.
3 Upon 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, May 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 of exchange, acceptance, or other negotiable in
strument, mado 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 May 30, and Arbor Day, shall fall
upon Sunday, then the Monday following shall be considered as a
legal holiday. Writs of injunctions, attachments, replevin, and
prohibition may be issued and served on.
C
Homestead.
Deed to. must be signed by husband and wife.
(See
Exemptions.)
Husband and Wife. All property, both real and personal, of
the husband or wife, owned or claimed by him or her before 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
separate property. The earning and accumulations of the wife and
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
wife. All property acquired by either husband or wife during
marriage, except that which is acquired by gift, devise, or descent, or
earned by the wife and her minor children while she has Uvea or may
live separate and apart from her husband, shall be deemed the common
roperty of the husband and wife, and during the coverture may be
lsposed of by the husband only. Married women of the age of
twenty-one years and upwards shall have the same legal rights as men
of the age of twenty-one years and upwards, except the right to make
contracts binding the common property of the husband and wife; and
shall be subject to the same legal liabilities. (See Dower, Convey
ance.)
Injunction. 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
such Judgment.
her
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S
Injuries—Personal.
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.
Judgments. Judgments of superior courts become a lien upon all
real estate of Judgment debtor In the county as soon as entered and
docketed Upon filing with the clerk of the 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
such Judgment be revived by scire facias or action for debt be brought
thereon within such five years.
Judicial Bonds.
(See Bonds.)
Levy. (See Executions.)
Licenses. For gambling prohibited.
Liens. All persons who may labor or furnish materials in the con
struction or repairing of any building, superstructure, canals, dams,
mines, or other Improvement, or cuts cordwood, 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
delivered to the recorder and filed for record and the other furnished
the party owing the debt, or his agent. Laborers’ and like liens are
preferred to all subsequent liens, mortgages, and Incumbrances, and
such as lien claimant had no notice. Suit to foreclose such liens must
1741
be commenced within six months atter filing the same In the recorder's
office. In case of the levy of writ of attachment or execution, clerks,
laborers, and employes of debtors have a preference claim for wages
for services performed sixty days before levy of writ, not exceeding
$200, upon filing notice of claim unpaid with creditor, debtor, and
officer executing writ. Proprietors of hotels, 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.)
Limitations. To recover realty against person in peaceable and
adverse possession under color of title, three years; against such posses
sion where person pays taxes and has deed recorded, live 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 of promise. Actions for relief
on the ground of fraud; must be brought within one year from dis
covery of fraud. Two years: Trespass to property, detention or
conversion of personal property to own use, taking and carrying away
goods and chattels; and injuries to person where death ensues, to
accrue from date of death. Three years; Actions for debt not in
writing; on stated or open accounts other than mutual between 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 of partnership
accounts; on mutual or current accounts between merchants, their
factors or agents, to accrue from cessation of dealings; upon judgment
or instrument without the Territory; bonds of executors, adminis
trators, or guardian, after death, removal, etc.; specific performance;
to contest will after discovery of fraud; and where no provision is
otherwise made. Five years: On domestic judgment where execution
has been issued within one year after rendition. Six years; debt
evidenced by writing within the state.
Mines unpatented are real estate for the purpose of Inheritance and
conveyance. Location requires seven monuments, three at each end,
and one at discovery, in which notice is to be placed on discovery;
title work consisting of a shaft 4x6x8 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.
Minors. (See Savings Banks.)
Mortgages. 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 ior 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 Public. In all certificates and acknowledgments the date
of expiration of commission must be stated, as 'commission expires—”
No certificate of holding office, etc., Is required when notary acts In
foreign state or country.
Notes and Bills of Exchange. (See Bills and Notes.)
Partnerships using fictitious name may file certificate showing
names of partners with county recorders. Foreign partnerships may
do so.
Powers of Attorney. No special statutory provisions relative to.
To confess Judgment must be executed subsequent to maturity of debt
confessed, and must be acknowledged. To convey lands or release
mortgages should be acknowledged as deeds, and recorded.
Probate Law. (See Savings Banks and Administration of Estates.)
Protest. Liability of drawer or Indorser of bill or note may be
fixed by regular protest and notice, eto., according to the usages and
custom of merchants. (See Bills and Notes.)
Records. The superior courts of each county are courts of record.
The recorder's office In each county relates to titles of real estate
and personal property, and probate record Instrument therein
notice. The minutes of the Sanitary Live Stock Board are notice of
all brands and marks of live stock.
Redemptions. From sheriff or Judicial sales, six months, by
debtors or successors in Interest; any lien holder may redeem within
three months thereafter by serving and filing statutory notice, by
serving notice In five days after end of said six months. The same rule
applies to foreclosure of mortgages and trust deeds whether by court
or under powers of sale.
Replevin. For possession of speclflo personal property which has
not been seized under any process, execution or attachment against
the property of the plaintiff.
Sales. The “uniform sales law’’ Is in force.
Seals. Addition or omission of seals or scrolls to instruments of
writing In no way affect the force and validity of the Instrument.
Instruments executed by corporations must have a corporate seal
attached.
Service. All summons upon persons shall be personal, or by leaving
a copy with copy of complaint at the usual place, of residence of
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 of 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.)
Taxes. Aside from those levied by legislative enactment for
specific purposes, as for the construction and maintenance of nubllo
institutions, etc.. State taxes are levied by the State Board of Equal
ization; county taxes by the boards of supervisors of the several
counties, and city taxes by the common councils of the various cities.
Railroads are valued for the purpose of taxation by the State Board
of Equalization. Other property is valued by county assessors.
The assessing of value begins in February of each year. Taxes
are levied on the third Monday of August in each year. The lien
attaches on the first Monday of February in each year. Taxes
become due not later than the third Monday in September, and
become delinquent if not paid on the third Monday of December.
The penalty for delinquency Is 5 per cent. Within 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
Is
BANKING AND COMMERCIAL LAWS—ARKANSAS
1742
commenced to foreclose tax lien penalty or twenty-live per cent la
added. There Is doubt about the right to redeem from tax sales.
Warehouses. Personal property In, may be sold for unpaid
charges.
Transfer of Corporation Stocks. (See Corporations.)
Wills. Wills must be In writing, signed by the testator, or by 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
550, unless It be proved by three credible witnesses that the testator
called on some person to take notice and bear testimony that such Is
his will, and that the 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 LAWS OF ARKANSAS
RELATING TO
BANKING AND COMMERCIAL USAGES.
Revised by Emerson, Donham & Shepherd.
Attorneys at Law, Little Rock.
(See Card in Attorneys’ List.)
*
Accounts verified by the plaintiff as Just and correct prove them
selves in suits thereon unless denied under oath.
Acknowledgments may be taken within the State before the
supreme or circuit court, or a judge thereof, or clerk of any court of
record, or a justice of the peace or notary public; elsewhere In the
United States before any court having a seal, or clerk of such court,
notary public, mayor having a seal, or commissioner of Arkansas;
without the United States before any court having a seal, mayor of a
city having a seal. United States consul, or any officer authorized by
the laws of such country to probate conveyances of real estate, pro
vided he has a seal.
Actions. 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.
Administration of Estates. Executors and administrators must
be residents of the State and must give bond In double the value of the
property. Foreign executors and administrators can maintain actions
in our courts. Claims are paid in the following order: First, funeral
expenses; second, expenses of last Illness; third. Judgments which are
Hens 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 of 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."
Affidavits in this State are made before a judge. Justice of the peace,
notary public, or clerk of the court; without the State before a judge,
mayor, notary public, justice of the peace or commissioner for this
State.
Aliens may hold and transmit property In all respects as residents.
Arbitration. Controversies may be submitted to arbitration, and
the award of the arbitrators Is filed In court, and is subject to review
on equitable principles only, and not for matters of form. When not
set aside they are entered of record and become the Judgment or decree
of the court.
Arrest. Defendants may be arrested for debt only when the
plaintiff flies 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
•atlsfy the plaintiff’s claim. Bond must be given conditioned to pay
the defendant all damages that he may sustain if wrongfully arrested.
Assignments for the Benefit of Creditors may be general or
partial, with or without preferences, and where all the debtor's prop
erty Is conveyed, may exact releases as a condition of preference. The
assignee must file an inventory of 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 distributed equally among all the creditors. Assignees
close up their accounts under the direction of the chancery courts.
Corporations can not prefer creditors.
Attachments may be sued out where the defendant Is a foreign
corporation or non-resident, or has been absent from the State four
months, or has left the State with intent to defraud his creditors, or
has left the county of his residence to avoid the service of summons,
or conceals himself so that summons can not be served on him, or is
about to remove or has removed a material part of his property out
of the State, not leaving enough to satisfy his creditors, or has sold,
oonveyed or otherwise disposed of his property, or suffered it to be
sold with the fraudulent intent to cheat, hinder, or delay his creditors,
or Is about so to do. It Is obtained by filing an affidavit stating the
nature of the plaintiff’s claim, that It is Just, Its amount and the exist
ence of the ground, and by giving bond conditioned to pay all damages
the defendant may sustain If the attachment Is wrongfully sued out.
The defendant is allowed to traverse the attachment, and the affidavit
and traverse then stand as pleadings upon which the issue Is tried.
If the attachment Is dissolved, the defendant may have an assessment
of damages upon the bond In the same suit. Persons claiming the
attached property may interplead In the same action. Attachments
may be sued out before the debt Is due where the defendant has sold
oonveyed, or otherwise disposed of his property, or permitted It to be
sold with the fraudulent intent to cheat, hinder or delay his creditors,
or Is 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 delay
ing his creditors.
Banks. The banking business is controlled by a state bank depart
ment under the direction of a bank commissioner. Any live or more
persons, the majority of whom must be rasidents of this state, may
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 Arm
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 of the individuals composing the firm and all
assets of any such private bank are exempt from execution by any
creditor of such individual or firm until all liabilities of the bank have
been paid; upon the death of an individual banker his widow is not
endowed of any property of the bank except such as remains after the
payment of all depositors and other creditors.
No corporation, firm or individual may do a banking business-until
a fee of one-fifth of 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 of the capital stock and for each amend
ment or supplement to the articles of agreement, except for an increase
of capital stock, there shall be paid an additional fee of $10. There
is also due the commissioner an annual fee of $15 in addition to a pay
ment of fifty cents on each $1,000 of the bank’s capital stock.
The fully paid-up capital stock of any bank organized after the pas
sage of 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
and not less than $50,000 in cities having more than 10,000 inhabitants.
The banking act does not apply to trust companies whose minimum
capital stock is $50,000.
The affairs of an incorporated bank are controlled by a board of
directors chosen from the stockholders; each director must be the
owner of not less than $500 worth of 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 of the aggregate of its deposits.
Stockholders are liable for tho debts of tho bank in the sum of the
par value of their stock in addition to the amount invested in such
stock. (Act No. 113, Acts of 1913, page 462).
Bills.
Exchange and Promissory Notes. 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 accept
ance shall have been shown, and who, on the faith thereof,
shall have received the bill for a valuable consideration. Every
holder of a hill 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 Hable to any person to whom a promise to
accept It may have been made; and whoJ on the faith of the promise,
has drawn and negotiated the bill. Any person on whom a bill la
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: If the bill is drawn on any place in this State 2 per
cent; if payable In the states of Alabama, Louisiana Mississinni
Tennessee, Kentucky, Ohio. Indiana, Illinois, or Missouri, or any point
on the Ohio River, 4 per cent; if drawn on any other place in the United
States. 5 per cent; if beyond the limits of the United States, 10 per
cent. If the bill be drawn by any person at any place within this State,
lf.<?r®wn by any person at any place without
this State, but within the limits of the United States, 6 per cent: If
drawn by any person without the limits of the United States, 10 per
cent. I he holder of any bill protested for non-payment or non-acceptance is entitled to costs of protest and interest at the rate of 10 per cent
per annum on the amount of the bill from date of protest. The term
Bill of Exchange includes all drafts or orders drawn by one person on
another for the payment of a sum of money 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. AU blank assignments are taken
to have been made on such day as shall be most to the advantage of
the defendant. In other respects the general rules of commercial
law apply.
Bills of Lading.
(See Warehouse Receipts and Bills of Lading.)
Collaterals are governed by the law merchant.
Contracts touching commercial matters are governed by the law
merchant.
Conveyances may he either witnessed by two witnesses or ac
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 he 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 LAWS—ARKANSAS
power of attorney and make executory contracts ot sale. Deeds
which have been recorded and are properly acknowledged prove them
selves. Any substantial departure from the form of acknowledgments
prescribed by the statute, such as the omission of the words “con
sideration” 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 Act 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
shall elect a board of directors. The president and secretary are to be
elected by the board and the president must be a member of it. The
secretary and treasurer must reside and keep the books of the com
pany 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 of the directors, setting forth the purpose of
the corporation, the amount of Its capital stock, the amount actually
aid In, tne names of its stockholders and the number of shares held
y 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 oounty 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
stockholders. The president and secretary are required to file with
the county clerk an annual statement of its financial condition, and
In case of a failure to do so become liable for its debts. If the 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 525 or 5100. 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-flfteenth of one
per cent each year upon the proportion of 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 of S100.00.
All foreign or domestic insurance companies, of whatsoever nature,
doing business in this state and having an outstanding capital stock
of less than $500,000 shall pay an annual tax of $100: and such com
panies having a capital stock of $500,000 or more an annual tax of
$200, this tax being In lieu of 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 of any stocks, con
tracts, bonds or other securities of any kind or character other than
bonds of the United States, or of some municipality authorized to
Issue bonds of 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 of the Bank Commissioner, together with a fee
of $5.00, in addition to the fees required of all incorporations, the
following documents: A statement showing in detail the plan upon
which it proposes to transact business; a copy of all contracts, bonds
or other instruments which it proposes to make with or sell to Its
contributors; a statement showing name and location of company
and an Itemized account of 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 of its articles of co-partnership or association and
all other papers pertaining to its organization; if it be an Arkansas
corporation it shall file a copy of its articles of incorporation, con
stitution and by-laws and all other papers pertaining to its organiza
tion ; if it be organized under the laws of any other state or territory
or government, incorporated or unincorporated, it shall file a copy of
the laws of such state or government under which it exists or is incor
porated, and also a copy of its charter, articles of incorporation,
constitution and by-laws and other papers pertaining to its organiZaTho 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 of 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 jndiyiaual 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 of
Arkansas in the sum of $20,000 for the faithful performance of 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 certi
ficate 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
right to do business Is revoked. Doing business here without complia nee with the law subjects the corporation to a line of not less than
$1,000. These requirements do not apply to railroad or telegraph
companies that had built lines In the State prior to Feb. 16, 1899. If
any corporation falls to appoint an agent, service of process on the
auditor of State shall bind It. No foreign corporation can sue on any
contract made in this State until these provisions are complied with.
Courts. The supreme court Is held at Little Rock and has juris
diction of appeals from the circuit and chancery courts. In all coun
ties separate courts of chancery have been established. Ihe estates
of deceased persons are entrusted exclusively to the probate courts,
with right of appeal to the circuit and thence to the supreme court.
Claims against counties are heard by the county court, as also matters
touching paupers and the like The justices courts have jurisdiction
of matters of contract not exceeding 5300, and matters of tort not
exceeding $100. Two terms of the circuit and chancery court and
four of the county and probate courts are held in each county per year.
Deeds. (See Acknowledgments and Conveyances.)
Depositions may be taken In the State before any judge or clerk of
a court of record, justice of the peace, mayor, or notary public; out
ot the State before a commissioner for this State, Judge, justice of the
S
1743
mayor, notary public, or person commissioned by the court or
Ceace,
y consent of parties.
Descents and Distributions. Property descends to children and
their descendants in equal parts; if no children, then to father, then to
mother, then to brothers and sisters and their descendants in equal
parts, and in default of such to the nearest lineal ancestor or his
descendants In equal parts per stirpes. Illegitimate children Inherit
and transmit an inheritance from the mother In the same manner as
if legitimate. If the parents of Illegitimate children subsequently
Intermarry and the father recognizes them as his, they shall be deemed
legitimate. In 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.
Dower. Where there are children the wife takes one-third of the
husband's personal estate absolutely and one-third of the real estate
of which he was seized at any time during the marriage, for life. Where
there are no children she takes In a new acquisition one-half of the real
and personal estate absolutely as against heirs, or one-third absolutely
as against creditors. If it Is an ancestral estate, she takes one-half for
life against heirs and one-third for life against creditors
Executions from the circuit court are returnable In sixty days,
those from Justices’ courts within thirty. They may be stayed for
six months by giving bond. They are a Hen 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. The defendant and other Judgment creditors have one year
In which to redeem rrom the sale of real estate. In case the writ is
returned nulla bona the plaintiff may proceed by bill of discovery
against the defendant and examine him on oath, and enforce a eu"render of concealed property by imprisonment.
Exemptions. Unmarried persons are entitled to $200 and married
persons and heads of families to $500 In selected articles of person.-!
property as exempt against debts by contract. Persons Mio ara
married or heads of families are entitled to a homestead as l.gainst ail
debts, except the purchase-money, specific liens, laborers' and mechan
ics’ liens, taxes and claims for trust funds converted. The homestead
In the country is not to exceed 160 acres, and In town not to exceed
one acre, nor to be worth more than $2,500, but the country 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 wife Joins and
which is acknowledged by her, and if the husband neglects to claim
the homestead the wife may do so.
Fraud. The English statute of fraudulent conveyances has been
re-enacted In this State.
Garnishments may be sued out pending suit upon giving bond in
double the amount garnished, or after Judgment without bond.
Holidays. The following are set apart and designated as legal
holidays: Christmas Day (December 25th); New Year’s Day (Jan
uary 1st), July Fourth; Thanksgiving Day (last Thursday in Novemcer); Washington’s birthday (February 22nd); Labor Day (first
Monday in September); General Robt. E. Lee’s birthday (January
19th); All general bi-ennial election days; Birthday, Jefferson Davis,
President of the Confederate States of America (June 3rd); Arbor
Day (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 Day (a public holiday, but not affecting
commercial paper, or the execution of written instruments, nor
interfering with judicial proceedings).
Husband and Wife. (See Married Women.)
Injunctions may be issued by circuit Judges, chancellors, or the
judge of any court In which suit is brought. The person applying
for the injunction must give bond as the court or Judge may direct.
Insolvency. The Supreme Court has held that the Federal Bank
ruptcy Act has suspended the State insolvency laws.
Interest. The legal rate of Interest Is 6 per cent, but parties may
contract in writing for not exceeding 10 per cent. Interest exacted In
excess of 10 per cent forfeits the debt. In computing the Interest
commissions paid to the agent of the lender are counted as interest.
Where 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.
Judgments (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 by filing a certified
copy in the office of the circuit clerk. A judgment survives for ten years.
Jurisdiction. (See Courts.)
Liens. Mechanics, builders, artisans, laborers, and others doing
any work upon or furnishing any material for any building or erection
under any contract with the owner or his agent, contractor or 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 or land
upon which the erection Is situated. Hotel keepers have Hen on
baggage and personal effects of guests. Liveryman have lien on aU
stock and property left in their care.
Limitations. Suits for the possession of real estate must be
brought within seven years, saving to minors and lunatics three
years after their disabilities are removed. Actions for recovery of
lands sold at judicial sales must be brought within five years, saving
to minors and lunatics three years after removal of disabilities.
Actions for the recovery of lands held under tax title must be brought
in two years. Actions for forcible entry and detainer, on contracts
not in writing, for trespass and for libel, within three years. Actions
for criminal 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 out of the statute.
One year is allowed after dismissal of a suit in which to begin a new
action. No person can avail himself of a disability which did not
exist at the time the right of action accrued. No endorsement of pay
ment made by the payee or on his behalf is sufficient proof to take
the case out of the statute.
Limited Partnerships 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 of the capital, beyond which he Is not
liable for firm debts. Those forming such partnership must make
and file in office of circuit clerk of county, and principal place of busi
ness, a certificate showing name of firm, names of partners, distin
guishing between general and special, nature of business, amount
of capital contributed by each partner, period of commencement and
termination of partnership. Business to be conducted by general
partners and suits brought by or against them.
BANKING AND COMMERCIAL LAWS—CALIFORNIA
1745
of the United States (2) bonds of the State. (3) Bonds of any state
Limitations. Claims against the estate are oald In the following
which has not defaulted in payment qf either principal or interest
order: 1. Funeral expenses. 2. The expenses of the last sickness.
within five years. (4) Bonds of any county, city or town or school,
3. Debts having preference by the laws of the United States. 4.
road, sewer, drainage, reclamation, protective or sanitary district,
Judgment rendered against the decedent In his lifetime, and mort
organized under the laws of the state, to limited amount. (5) Bonds
gages and other liens in the order of their date; and 5, all other de
of any county, city or town of any state of a population of more than
mands against the estate.
200,000 and an entire bonded indebtedness less than fifteen per cent
Affidavits. An affidavit to be used before any court, Judge, or
of the taxable property, where interest or principal has not been
officer of this State may be taken before any officer authorized to
defaulted within five years. (6) Bonds of railroads organized under
administer oaths. In this State every court, every judge or clerk of
the state and operating exclusively therein or of railroads operating
any court, every Justice and every notary public, and every officer or
at least 500 miles of standard gauge tract, or of any railroad cor
person authorized to take testimony In any action or proceeding, or
poration payment of which has been guaranteed, by the preceding
decide upon evidence, has power to administer oaths and affirmations.
clauses of railroads; provided, that in all cases the net earnings are
An affidavit taken In another State of the United States to be used
as
required by statute. (7) Bonds of Public Utility corporations,
in this State, may be taken before a commissioner appointed by the
incorporated under the laws of the State of California, provided the
governor of this State to take affidavits and depositions In such other
properties and earnings, etc., are as required by statute. (8) Notes
State, or before any notary public In another State, or before any
or bonds secured by first lien on real estate to sivty per cent of its
judge or clerk of a court of record having a seal. An affidavit taken
market value. (9) Collateral trust bonds or notes secured by de
In a foreign country to be used in this State, may be taken before an
posit of authorized bonds fifteen per cent in excess of such collateral
ambassador, minister, consul, vice-consul, or consular agent of the
bonds or the deposit of such bonds and other securities twenty per
United States, or before any judge of a court of record having a seal,
cent in excess of such collateral bonds, provided the market value
in such foreign country.
of the authorized bonds deposited equal such collateral bonds. (10)
Aliens.
1. AU aliens eligible to citizenship may take, hold and
Bonds accepted by savings banks under the laws of New York or
dispose of property, real and personal, within this State.
Massachusetts. (11) Certificates issued by corporations with a
2 All aliens not eligible to citizenship may acquire and possess land
paid up capital stock of not less than $100,000, secured upon real
in accordance with the terms of any existing treaty with any foreign
estate and guaranteed in the manner required by the Bank Act.
country of which such alien is a citizen, and not otherwise, and in
No savings bank must loan mcney except on adequate security on
addition may lease land for agricultural purposes for three years.
real or personal property and such loan must not be for longer than
3. Any company, association or corporation composed in the main
ten years. It must have a paid up capital stock graduated from
of aUens may acquire and possess land in accordance with the terms
$25,000 when located in any place of less than 5,000 population, to
of any existing treaty with any foreign country of which they are
$300,000 when the population is in excess of 200,000. Savings
citizens, and not otherwise, and in addition may lease land for agri
banks organized without capital stock must have a reserve fund of
cultural purposes for three years
$1,000,000. The capital stock and surplus of savings banks, must
4 When It appears in any probate proceedings wherein any aUen equal ten per cent to and including $2,000,000 deposit liabilities,
must exceed seven and one half per cent of deposit liabilities from
Is an heir that he could take real property except for the provision of
$2,000,000 to $5,000,000, five per cent from $5,000,000 to $15,000,000,
this act the probate court shall order the sale of such real property
two and one half per cent from $15,000,000 to $40,000,000. and one
and distribute the proceeds to such alien.
per cent of deposit liabilities in excess of $40,000,000. A surviving
5 For any violation of this act the attorney-general shall Institute
husband or wife or next of kin of any deceased person may, without
forfeiture proceedings and upon final judgment the lands shall escheat
procuring letters of administration, withdraw any sum deceased
to the State.
6 When it appears that any alien or aliens are holding any lease may have had on deposit in any savings bank if the sum does not
exceed $500.00.
hold interests in violation of the above provisions the attorney-general
shall likewise institute forfeiture proceedings, and such leasehold
Banks. The business of banking may be carried on only by
interest or its monetary value together with the costs of such forfeiture
corporations organized for that purpose under the Bank Act. The
proceedings shall escheat to the State.
capital stock and surplus of commercial banks must exceed ten per
No non-resident alien can take by succession unless he appear
cent of deposit liabilities. Such corporations are classified as: Com
and claim within 5 years after death of decedent.
mercial, Savings or Trust companies, and, together with building and
loan associations, are conducted under the supervision and inspection
Arbitration. The submission to arbitration must be in writing,
of a State Superintendent of Banks, to whom such banks must sub
and it may stipulate that It be entered as an order of the superior
mit at stated intervals to examination. No person unless organized
court for which purpose it must be filed by the clerk. If the sub
as a bank under the laws of this state may hold himself out as en
mission is not made an order of the court, it may be revoked at any
gaged in the banking business, or use the word bank, savings or
time before the award. All the arbitrators must act, but a majority
trust company in connection with his business. Every bank may
governs Their award must be In writing, signed by a majority of
conduct a commercial and savings department, provided its capital
them and delivered to the parties, and when the submission is made
stock, if situated in a locality of less than 5,000 population amounts
by an order of the court, must be filed by the clerk who enters the
to $25,000, or both or either departments in conjunction with a
same, after the expiration of five days, in the judgment book, and
trust department if the same amounts to $125,000. If the population
thereupon it has the effect of a judgment. Title to real property
of a locality is from 5,000 to 25,000 a capital of $50,000 is required
cannot be arbitrated. Upon application a State Board of Arbitra
for a savings and commercial department and $150,000 for both or
tion has jurisdiction over disputes between employer and employee.
either in conjunction with a trust department. If the population
Arrest. In an action for the recovery of money upon a contract,
is from 25,000 to 100,000 a capital of $200,000 and $400,000 respec
express or Implied, the defendant may be arrested If about to depart
tively. is required; if the population is over 200,000 a capital of $300,
from the State with Intent to defraud his creditors, upon order of
000 and $500,000, respectively, is required. Every bank must des
court based upon affidavit therefor, also in an action for money or
ignate the character of its business. A bank organized under the
other property embezzled or fraudulently misapplied by a public
laws of another state must comply with all the requirements of the
officer, officer of a corporation, or an attorney, factor, broker, agent,
State Bank Act, set apart to its business conducted here the surplus
or clerk in the course of his employment, or by any person in a fidu
paid up stock required of California corporations, and constitute the
ciary capacity; also in actions to recover the possession of personal
State Superintendent of Banks its agent for service of process. A
property where It has been concealed or removed or disposed of to
banker has a general lien dependent upon possession of all property
prevent Its being found: also In cases where the defendant has been
in his hands belonging to a customer for the balance due to him
guilty of a fraud in contracting the debt or obligation for which action
from such customer in the course of business. The same capital
Is brought; or in concealing or disposing of property: also when the
stock is required of commercial banks as of savings banks. (See
defendant has removed or disposed of his property or is about to do
savings banks.) With some exceptions no commercial bank can lend
so with intent to defraud creditors. Bail given upon arrest is liable
more
than ten per cent of its capital stock on unsecured loans or
upon judgments secured.
twenty-five per cent upon security worth at least fifteen per cent
Assignments for the Benefit of Creditors. Assignments for
more than the loan so secured, but a commercial bank may buy or
the benefit of creditors must be written and acknowledged by the
discount bills of lading or exchange drawn against actual value or
assignor or his agent authorized thereto In writing and recorded, and
buy and discount commercial paper, not to exceed twenty-five per
must be made to the sheriff of the county where the insolvent resides,
cent of its capital and surplus.
or If a non-resident, where he has property. Assignments for the
benefit of creditors are void against any creditor not assenting thereto
Bills and Notes. The Uniform Negotiable Instruments Law is
in force. Statutes of 1917. Chapter 751.
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
Chattel Mortgages may be made on any personal property,
release or compromise his demand. Assignments must contain names
including growing crops and fruit, except personal property not cap
of creditors and the amounts.
able of manual delivery, articles of wmaring apparel and personal
Attachments may be Issued at the time of or any time after
adornment, and the stock in trade of a merchant, provided that when
issuing the summons where amount sued for exceeds $10.00. All
said personal property refers to fixtures or equipment of a merchant,
property not exempt from execution may be attached. An attach
seven days notice must be given, otherwise the same is void as to
ment lien upon real property continues for three years and may be
creditors of the mortgagor. In the absence of delivery and continued
extended for two years more. The clerk of the court must issue
change of possession, the chattel mortgage will be void as to creditors
the writ of attachment upon receiving an affidavit by or on behalf
of the mortgagor unless acknowledged or proved, certified, and re
of the plaintiff showing, (1) That the defendant is indebted to the
corded, as required in cases of grants of real property and accompanied
plaintiff, specifying the amount of such indebtedness over and above
by affidavits of all the parties that it is made in good faith, and with
all legal set-offs or counter-claims, upon a contract, express or implied,
out any design to hinder, delay or defraud creditors. Such mortgages
for the direct payment of money, and that such contract was made
must be recorded in county it is situated in and if removed to another
or is payable in this state, and that the payment of the same has
county a copy of mortgage must be recorded in county within 30
not been secured by any mortgage or lien upon real or personal prop
days or mortgagor must take possession.
erty or any pledge of personal property, or, if originally so secured,
Collaterals. Are governed by the law relating to pledges of per
that such security has, without any act of plaintiff, or the person
sonal property. A pledge Is a deposit of personal property by way of
to whom the security was given, become valueless; or (2) That the
security
for the performance of any act. Delivery of the thing
defendant is a non-resident of the State, and is indebted to plaintiff,
pledged Is essential to the validity of the bailment. When the per
sDecifving the amount of such indebtedness over and above all legal
formance of the act for which the pledge Is given is due in whole or
set-offs or counter-claims, upon a contract expressed or implied;
In part, the pledgee may collect what Is due to him by the sale of the
or (3) That plaintiff’s cause of action against defendant is one to
property pledged. But before the property can be sold the pledgee
recover a sum of money as damages (specifying the amount thereof)
must demand performance thereof from the debtor, if he can be
arisin" from an injury to property in this State in consequence of
found, and must give actual notice to the pledgor of the time and
the negligmd, fraud or other wrongful act of the defendant and
place at which the property pledged will be sold, at such a reasonable
that the defendant is a non-resident of the State, and (4) That
time before the sale as will enable the pledgor to attend, but notice
the attachment is not sought, nor is the action prosecuted, to hinder,
of the sale may be waived by the pledgor at any time. The sale
delay, or defraud any creditor of defendant. Before issuing the writ,
must be by public auction and must be for the highest obtainable
the clerk must require a written undertaking on the part of the plainprice. After the sale the pledgee may deduct from the proceeds the
tiff, in a sum not less than $200, or in Justices Court of from $50.00
amount due and the necessary expenses of sale and collection, and
to $300, and not exceeding the amount claimed by plaintiff, with
must pay the surplus to the pledgor. The pledgee, or a pledge
sufficient sureties, to the effect that, if the defendant recovers judgment,
holder, may purchase the property pledged when the same Is sold
the plaintiff will pay all costs that may be awarded to the defendant,
at public auction. A pledgee can not sell any evidence of debt
and all damages that he may sustain by reason of the attachment,
(collateral) pledged to him, except the obligations of government*,
not exceeding the sum specified in the undertaking, and that if the
states, or corporations: but he may collect the same when due.
attachment is discharged on the ground that the plaintiff was not
Contracts. Certain contracts are invalid unless the same or
entitled thereto, the facts required in the above not being existent,
some note or memorandum thereof is in writing. (See Statute of
the plaintiff will pay all damages which the defendant may have
Frauds.) A contract for personal services cannot be enforced for
sustained by reason of the attachment, not exceeding the sum speci
over two years.
fied in the undertaking.
Conveyances. An estate In real property, other than an estate at
Banks, Savings. A savings bank may purchase or hold: (1)
‘
will, or for a term not exceeding one year, can be transferred only by
Real Estate, furniture, fixtures, etc., in which its business may be
operation of law, or by an instrument in writing, subscribed by the
conducted. (2) Property mortgaged or held in trust on account of
party disposing of the same, or by his agent thereunto authorized In
any money lent in the course of business. It shall not purchase
writing. Leases of agricultural land for a longer period than 10
personal property except (1) bonds or interest bearing obligations
1746
BANKING AND COMMERCIAL LAWS—CALIFORNIA
years ana of 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 or the grant that a
lesser estate was intended. A grant of real property may be made
In the following form: “I, A. B., grant to C. D. all that real prop
erty situated in (insert name of county) county. State of California,
bounded (or described) as follows: (Here insert description, or
if the land sought to be conveyed has a well-established descriptive
name, It may be described by such name as for instance: ‘The
Norris Ranch.’) Witness my hand this (insert) day of (Insert month),
19—. A. B.” The use of the word "grant” Implies the following
covenants: 1. That previous to the time of the conveyance the
grantor had not conveyed the same estate, or any right, title, or 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 hls suc
cessors. Instruments entitled to be recorded must be recorded by
the county recorder of the county in which the real property affected
thereby Is situated. Every conveyance of real property, acknowl
edged or proved and certified and recorded as prescribed by law, from
the time it is filed with the recorder for record, is constructive notice
of the contents thereof to subsequent purchasers and mortgagees, and
every conveyance of real property other than a lease for a term not
exceeding one year is 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.
Corporations. Private corporations may be formed by the volun
tary association of any three or more persons. In the manner prescribed
by statute not to exceed 50 years. A majority of such persons must
be residents of this State. Private corporations may be formed for
any purpose for which individuals may lawfully associate themselves.
The number of directors of corporations for profit, except those
mentioned as excepted, may be increased or diminished, by a major
ity of the stockholders of the corporation to any number, not less
than three, who must be members of the corporation. A copy of the
articles of incorporation, certified by the secretary of State, must be
filed with the county clerk of every county where the corporation
purchases, acquires or locates property, within sixty days after
such purchase or location. Upon filing the articles of incorporation
In the office of the county clerk of the county in which the principal
business of the company is to be transacted, a copy thereof, certi
fied by the county clerk, with the secretary of State, the secretary of
State must issue to the corporation over the great seal of the State
a certificate that a copy of the articles containing the required state
ment of facts has been filed in his office, and thereupon the persons
signing the articles, and their associates and successors, shall be a
body politic and corporate by the name stated in the certificate,
and for a term of fifty years, unless it is in the articles of incorporation
otherwise stated, or in the code otherwise specially provided. A
copy of any articles of incorporation filed in pursuance of this chapter,
and certified by the secretary of State, must be received in all the
courts, and other places as prima facie evidence of the facts therein
stated. (See Foreign Corporations.) All stocks is assessable for the
purpose of paying debts and meeting expenses but no single assess
ment must exceed 10%. The franchise of all corporations as dis
tinct from its tangible property is subject to taxation.
Each stockholder of a corporation is individually and personally
liable for such proportion of its debt and liabilities incurred while
he was a stockholder as the amount of stock or shares owned by
him bears to the whole of the subscribed capital stock or shares of
the corporation, and for a like proportion only of each debt or claim
against the corporation, but such liability is barred within 3 years
after the obligation is incurred. Any creditor of the corporation
may institute joint ot several actions against any of its stockholders
for the proportion of this claim, payable by each, and in such action
the court must ascertain the proportion of the claim or debt for which
each defendant is liable, and a several judgment must be rendered
against each in conformity therewith. If any stockholder pays
his proportion of any debt due from the corporation incurred while
he was such stockholder, he is relieved from any further personal
liabilities for such debt; and if an action has been brought against
him for such debt, it shall be dismissed as to him upon hls 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, so long as
the latter remains a minor; and also to every guardian or other
trustee who voluntarily invests any trust funds In the stock. Stock
held as collateral security, if fact of pledge appears, or by a trustee, or
In any other representative capacity, does not make the holder thereof
a stockholder, except in the case above mentioned, so as to charge
him with any proportion of the debts or liabilities of the corporation;
but the pledgor, or person, or estate represented is to be deemed the
stockholder as respects such liabilities. In corporations having no
capital stock, each member is individually and personally liable for his
roportlon of its debts and liabilities, and similar actions may be
rought 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.
Courts. Terms and Jurisdiction. Justices' courts have civil
Jurisdiction: 1. In actions arising on contracts for the recovery of
money, only if the sum claimed, exclusive of interest, does not amount
to $300, and the Jurisdiction of a Justice of the peace In all cases
where 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, if the sum claimed does not amount to $300. though the
penalty may exceed that sum. 6. To take and enter Judgment for
the recovery of money on the confession of a defendant, when the
amount confessed, exclusive of Interest, does not amount to $300.
7 Also concurrent Jurisdiction with the superior courts, within their
respective townships in actions of forcible entry and detainer, where
the rental value of the property entered upon or unlawfully detained
does not exceed $26 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 cases at
law which Involve the title or possession of real property, or the
legality ot any tax, etc., and in all other cases in which the demand,
exclusive of interest or the value of the property in controversy,
amounts to $300; of actions ot forcible entry and detainer, of pro
S
ceedings in Insolvency: of actions to prevent or abate a nuisance; of
all matters of probate, of divorce and for annullment of marriage;
and of all such special cases and proceedings as are not otherwise
provided for. They also have power to issue writs of mandamus,
certiorari, prohibition, quo warranto, and of habeas corpus on petition
by or on behalf of any person in actual custody In their respective
counties. Injunctions and writs of prohibition may be issued and
served on legal holidays and non-Judlclal days. The superior courts
have appellate jurisdiction in cases arising in Justices’ and other
Inferior courts in their respective counties provided the appeal be
taken within thirty days of the ludgment.
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 court 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 of
mandamus, certiorari, prohibition, and habeas corpus; it shall also
have power to issue all other writs necessary and proper tor 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 of 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 of the property In controversy amounts to
$2,000; also in all such probate matters as may be provided by law;
also on questions of law alone In all criminal cases where the Judgment
of death has been rendered; the said court also has appellate 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.
Depositions. The deposition of a witness out of this State may
be taken upon a commission issued from the court under the seal of the
oourt,-upon an order of the court, or a Judge or Justice thereof, on the
application of either party, upon five days’ previous notice to the
other. If the court be a justice's court, the commission shall have
attached to it a certificate under seal by the clerk of the superior
court of the county to the effect that the person issuing the same
was an acting justice of the peace at the date of the commission. If
issued to any place within the United States, it may be directed to a
person agreed upon by the parties, or if they do not agree, to any
notary public, judge or justice of the peace or commissioner selected
by the court, or judge, or justice issuing it. If issued to any country
out of the United States, it may be directed to a minister, ambassador,
consul, vice-consul, or consular agent of the United States in
such country, or to any person agreed upon by the parties. The
commission must authorize the "commissioner to administer an -oath
to the witness. The testimony of a witness out of the State may be
taken by deposition In an action, at any time after the service of the
summons or the appearance of the defendant; in a special proceeding,
at any time after a question of fact has arisen therein. Depositions
must be taken in the form of question and answer. The words of
the witness must be written down, in the presence of the witness,
by the officer taking the deposition or by some indifferent person
appointed by him. It may be taken down in short hand in which
case it must be transcribed to long hand by the person who took It
down. When completed, it must be carefully read to or by the
witness and corrected by him in any particular, if desired, by writing
or causing his corrections to be written at the bottom of the deposition,
and must then be subscribed by the witness. Corrections must be
initialed by officer before whom deposition is taken. If the parties
agree in writing to any other mode, the 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 pendlng, 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 afflaavlt 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 oi medal 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 of the witness, the Judge or Justice must cause hls
testimony to. be taken In writing, and must certify and transmit the
same to the court or Judge before whom the action or proceeding la
pending. In such manner as the law of that State requires.
Descent and Distribution of Property. Property, both real
and personal, of an Intestate passes to hls heirs. A surviving wife
succeeds to one-half of the community property, 1. e , all property
acquired by husband or wife during the marriage, which does not
Include property acquired by either husband or wife by gift, bequest,
devise or descent, which is separate property. Dower Interest does
not exist. The separate estate is distributed as follows: If the
decedent leaves a surviving husband or wife and only one child, or
the lawful issue of one child, in equal shares to the surviving husband
or wife and child or issue of such child. If a surviving husband or
wife and more than one child living, or one child living and the lawful
issue of one or more deceased children, one-third to the surviving
husband or wife, and the remainder In equal shares to the children
and to the lawful Issue of any deceased child by right of representation.
But If there be no child living, the remainder goes to all the lineal
descendants, and If they are in the same degree ot kindred to the
BANKING AND COMMERCIAL LAWS—CALIFORNIA
decedent they share equally, otherwise by right or representation.
If the decedent leaves no surviving husband or wife, the whole estate
goes to the Issue—the Issue of children taking by right of represen
tation. If there Is no Issue the estate goes one-half to the surviving
husband or wife and the other half to the father and mother In equal
shares, or. If one be dead, to the survivor; If there be no father or
mother, then their one-half goes In equal shares to the brothers and
sisters or to their representatives. If there Is no Issue, or husband or
wife, the estate goes to the father and mother, or the survivor, or. It
both be dead, then In equal shares to the brothers and sisters, and
to the children of any deceased brother or sister by right of repre
sentation. If the decedent leaves a surviving husband or wife, and
neither Issue, father, mother, brother, nor sister, the whole estate
goes to the surviving husband or wife. If the decedent leaves neither
Issue, husband, wife, father, mother, brother, nor sister, the estate
must go to the next of kin In equal degree. Illegitimate children
Inherit from mother, also from father if recognized in writing but
can only inherit directly and not by representation. These are the
principal provisions of the law of succession. Tenancy by the cour
tesy is not known to our law. If the person dies testate, all property
passes as directed by the will.
Executions. May Issue any time within 5 years from entry of
Judgment and after lapse of 5 years the judgment may be enforced
or carried into execution by leave of court upon motion, or by judg
ment for that purpose, founded upon supplemental proceedings.
No right of stay exists except by order of the court In its discretion.
Execution may issue against the property of a judgment debtor
after his death, only if the judgment be for recovery of real or per
sonal property, or the enforcement of liens thereon. Real property
may be redeemed within one year, personal property not at all.
Exemptions. The following property Is exempt from execution:
1. 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 of 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 of husbandry not exceeding in value the sum
of $1,000; also two oxen or two horses, or two mules, and their harness;
one cart or buggy and two wagons, and food for such oxen, horses,
or mules for one month; also all seed, grain, or vegetables, actually
provided, reserved or on hand for the purpose of planting or sowing
at any time within the ensuing six months, not exceeding in value
the sum of $200, and seventy-five bee hives, and one horse and ve
hicle belonging to any person who is maimed or crippled, and the
same Is necessary in his business. 4. The tools or implements of
mechanic or artisan necessary to carry on his trade; the notarial
seal, records, and office furniture of a notary public; the instruments
and chest of a surgeon, physician, surveyor, or dentist, necessary to
the exercise of their profession, with their professional libraries and
necessary office furniture; the professional libraries of attorneys,
judges, ministers of the gospel, editors, school teachers and music
teachers and their necessary office furniture, including one safe and
one typewriter, also the musical instruments of music teachers ac
tually used by them In giving instructions; and all the indexes, ab
stracts, books, papers, maps, and office furniture of a searcher of
records necessary to be used in his profession; also the typewriters
or other mechanical contrivances employed for writing in type 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 of carrying
on his regular business, or when the same is used for the purpose
of transporting the owner to and from his place of business. 5. The
cabin or dwelling of a minor not exceeding in value the sum of $500;
also his sluices, pipes, hose, windlass, derrick, cars, pumps, tools,
implements, and appliances necessary for carrying on any mining
operations, not exceeding, in value the aggregate sum of $500; ana
two horses, mules, or oxen, with their harness, and food for same
(or one month, wnen necessary to ne used in any whim, windlass,
derrick, car, pump, or hoisting gear, and also his mining claim, actu
ally worked by him. not exceeding in value the sum of $1,000 6
Two horses, two oxen, or two mules, and their harness, and one oart
or wagon, one dray or truck, one coupe, one hack or carriage for one
or two horses, by the use of which a cartman, truckman, huckster
peddler, hackman, teamster, or other laborer habitually earns his
living. and one horse with vehicle and harness, or other equipments
used by a physician, surgeon, constable, or minister of the gospel in
the legitimate practice of his profession or business, with food for
same for one month. 7. One fishing boat and net, not exceeding
the total value $500, the property of any fisherman by the lawful
use of which he earns a livelihood. 8. Poultry, not exceeding in
value $75. 9. Seamen's and seagoing fishermen’s wages and earn
ings not exceeding $300. 10. The earnings of the judgment debtor
for his personal services rendered at any time within thirty days
next preceding the levy of execution or attachment, where it appears
by the debtor's affidavit or otherwise, that such earnings are neces
sary for the use of his family residing in this State supported in whole
or in part by his labor; but where debts are incurred by any such
or his wife or family for the common necessaries of life, or
Eerson,
ave 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 of a homestead association duly
incorporated, not exceeding in value $1,000, if the person holding
the shares is not the owner of a homestead under the laws of this
State. 12. All the nautical instruments and wearing apparel of
any master, officer, or seaman of any steamer or other vessel. 13.
All fire engines, hook and ladders, with carts, trucks, carriages, hose,
buckets, implements, and apparatus thereunto appertaining; and
all furniture and uniforms of any fire company or department or
ganized under any law of this State. 14. Ail arms, uniforms and
accoutrements required by law to be kept by any person, and also
one gun to be selected by the debtor. 15. All court houses, jails,
and town, county, and State buildings; all public buildings, grounds,
places, etc. 16. All material purchased for use in the construction,
alteration, etc., of any building, mining claim, etc., 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 of such machinery, tools, implements, engines, etc., to
the value of $1,000. 18. All moneys, benefits, privileges, or im
munities accruing, or in any manner growing out of any life insurance
on the life of the debtor, if the annual premiums paid do not exceed
$500. 19. Shares of stock in any building and loan association to
the value of $1,000. 20. Pensions from the United States Govern
ment. No article, however, or species of property mentioned in
this section, is exempt from execution issued upon a judgment re
covered for its price or upon, a judgment of foreclosure of 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 I
1747
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 misleading another to his prejudice. Actual fraud Is always a
question of fact.
Garnishment. Upon receiving instruction in writing from the
lalntiff or his attorney that any person has in his possession, or under
is 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 sucn writ. All persons having any such property
at the time of serving of such writ, unless it is delivered up or trans
ferred or paid to the sheritf, shall be liable to the amount of such
credits, property, or debts, until the attachment be discharged, or
any Judgment by him recovered be satisfied.
Homestead. The homestead consists in the Interest ot the
claimant, divided or undivided, in the dwelling house in which the
claimant resides, and In the land on which the same is situated,
selected, If the claimant be married, from community property, or
the separate property of the husband, or, with the consent of the
wife from her separate property. When the claimant is not married,
but Is the head of a family, the homestead may be selected from any
of his or her separate property. The homestead can not be selected
from the separate property of the wife without her consent, shown
by her making or Joining the declaration of homestead. The 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 nens upon the premises.
2. On debts secured by mechanics' contractors’, suD-contractors’.
artisans’, architects’, builders', laborers’ of every class, materialmen’s
or vendors' liens upon the premises. 3. On debts secured by
mortgages on the premises, executed and acknowledged by the hus
band and wife or by an unmarried claimant. 4. On debts secured
by mortgages on the premises, executed and recorded before the
declaration of homestead was filed for record. In cases not 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: J. If not exceeding $5,000 in value, by any
head of a family 2. If not exceeding $1,000 In value, by another
person upon death of either spouse, if homestead is selected from
community property or from separate property of spouse joining
therein, title thereto vests in survivor otherwise to the heirs or de
visees of the person whose property was selected.
Husband and Wife. The husband is the head of the family.
He may choose any reasonable place or mode of living, and the wife
must conform thereto. In other respects their Interests are separate.
Neither husband nor wife has any Interest in the separate property
of the other, and either may enter into any engagement with the
other, or with any other person, respecting property, which either
might if unmarried. All property of either, owned by him or her
before marriage, and that acquired afterward by gift, bequest, devise
or descent. Is the separate property of such person. All other 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, provkled 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 tho husband. The husband is not Hable for damages or
torts committed bv wife except in a case where he would be jointly
Hable with her if the marriage did not exist. The separate property
of the husband is not liable for the debts of the wife contracted before
marriage, and the separate property of the wife is not liable for the
debts of her husband, but is liable for her own debts contracted before
or after marriage. A husband and wife may hold property as joint
tenants, tenants by entreaties, tenants in common, or as community
roperty upon death of wife entire community property goes to
usband, whereas on death of husband wife gets one half of com
munity.
Interest. The legal rate of interest is 7 per cent and Is due upon
Judgments after rendition and upon other obligations unless there
Is an express contract in writing fixing a dilferent 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.
Judgments. (See Actions.) Upon filing the Judgment roll,
which is a record of the proceedings in the case, it must be docketed
by the clerk, whereupon it becomes a lien upon any real property of a
Judgment debtor not exempt from execution in the county which the
said Judgment debtor owns at that time, or which he may thereafter
acquire. This lien continues for five years, unless the enforcement
of the judgment be stayed on appeal. A judgment is barred by the
act of limitation within five years, unless revived by leave of court
upon motion, or by an action upon the judgment. Judgment must
first be satisfied out of property of the judgment debtor which has
been attached and in the custody of the sheriff.
Liens. Mechanics, material-men, contractors, sub-contractors,
artisans, architects, machinists, builders, miners, teamsters, dray
men and all persons and laborers of 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 of 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 ndnlng 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 of a passenger
for the payment of his fare. One who sells real property has a ven
dor's lien thereon. Improvers of 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.
Seamen have general Hens independent of possession. Owners of
1748
BANKING AND COMMERCIAL LAWS—CALIFORNIA
animals used for propagating purposes have a lien for the agreed
price upon the offspring. Loggers rendering services upon logs,
bolts and other timber have a lien thereon for the amount due for
their personal services.
Every person performing work or labor in, wltn, 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 of his services, for ten days after ceasing work or labor,
provided, within that time, an action Is brought to recover the amount
of the claim, persons repairing or altering any personal property have
a lien for the reasonable value of such service.
Limitations. 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 of actions other than for the re
covery of real property, are as follows: Within five years: (1)
An action upon a judgment or decree of any court of the United
States, or of any State within the United States. (2) An action
for mesne profits of real property. Within four years: (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: (1) 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 specitic recovery of personal property. (4) An action for
relief on the ground of fraud or mistake, the cause of action In such
case not to be deemed to have accrued until the discovery by the
aggrieved party of the facts constituting fraud or mistake: Within
two years: (1) An action upon a contract, obligation or liability
not founded upon an Instrument of writing, or founded upon an
Instrument of writing executed out of the State. (2) An action on a
debt, liability or obligation evidenced by an abstract, guarantee or
certificate of title; and such action shall not be deemed to have accrued
until the discovery of the loss or damage. (3) An action against
a sheriff, coroner, or constable, upon a liability incurred by the doing
of an act in his official capacity, and in virtue of his office, or by the
omission of an official duty, including the non-payment of money
collected upon an execution; but this subdivision does not apply
to an action for an escape. Within one year: (1) An action upon
a statute for a penalty or forfeiture, when the action is given to an
individual or to an individual and the State, except when the statute
imposing it prescribes a different limitation. (2) An action upon
a statute, or upon an undertaking in a criminal action, for a forfeiture
or penalty to the people of this State. (3) An action for libel, slander,
assault, battery, false imprisonment, or seduction, or for injury to
or for the death of one caused by the wrongful act or neglect of another,
or by a depositor against a bank for the payment of a forged or raised
check. (4) An action against a sheriff, or other officer, for the escape
of a prisoner arrested or imprisoned on civil process. (5) An action
against a municipal corporation for damages or injuries to property
caused by a mob or riot. Within six months: (1) An action to
recover property seized by tax collector. (2) To recover corpora
tion stock sold for delinquent assessment. To actions brought to
recover money or other property deposited with any bank, banker,
trust company, or savings and loan society, there is no limitation.
If when the cause of action accrues against a person, he is out of the
State, the action may be commenced within the term herein limited,
after his return to the State, and if. after the cause of action accrues,
he departs from the State, the time of his absence Is not part of the
time limited for the commencement of 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 for the commencement of the action. No acknowledg
ment or promise is sufficient to take a case out of the operation of
the statute of limitations, unless the same Is in writing, signed by
the party to be charged. Part payment will not take the case out of
the statute ol 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.)
Married Women. 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
of his desertion or by an agreement in writing. A married woman
may become a sole trader by the judgment of the superior court of
the county in which she has resided for six months next preceding
the application. The husband of the sole trader is not liable for
any debts contracted by her in the course of her sole trader’s business
unless contracted upon his written consent. A married woman may
convey without consent of her husband, and is not liable for the
debts of her husband, but is liable for her own debts contracted
before or after her marriage. She may contract as a femme sole
so as to bind her separate property. The wife may make a will of
her separate property. The earnings of the wife are not liable for
the debts of her husband.
Mechanics’ Liens. (See Liens.)
w
Mortgages. 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 of 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 docs not entitle
the mortgagee to the possession of the property. Tne 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 of redemption of the mortgagee,
unless expressly stipulated.»the mortgage is not a personal obligation
on part of mortgagor.
Notes and Bills of Exchange.
Pledge. (See Collaterals.)
(See Bills and Notes.)
Powers of Attorney. 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 the 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
In which the instrument containing the power was recorded. When
an attorney In fact executes an instrument transferring an estate
In real property, he must subscribe the name of his principal to It.
and his own name as attorney In fact.
Probate Law. (See Administration or Estates, Claims against
Estates of deceased persons. Descent and Distribution.) The superior
court has jurisdiction of proceedings in probate, and such proceedings
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 the
county in which any part of the estate may be, If the decedent died
out of the State and was not a resident. (4) In any county in
which any part of the estate may be, or the decedent not being a
resident of 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 required
of the executor or administrator within three months. Upon the
return of 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, desig
nate and set apart and cause to be recorded a homestead for the
use of the surviving husband or wife, or of the minor children, or
if there be no surviving husband or wife, then for the use of the minor
children out of 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
of the estate for the use and support of the family of the deceased.
Protest. (See Bills and Notes.)
Replevin. There Is no action of replevin In this State, but the
action of claim and delivery substantially takes its place. The
plaintiff in an action to recover the possession of personal property
may at the time of issuing the summons, or at any time before answer,
claim the delivery of such property. An affidavit must be made by
the plaintiff or by some one in his behalf showing that the plaintiff
Is the owner of the property, or entitled to its possession, that the
property is wrongfully detained by the defendant, the alleged cause
of detention thereof, and that It has not been taken for a tax, 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 fails
so to do the property is delivered to the plaintiff. Third parties
may upon affidavit of ownership, claim such property and secure
its release under bonds. The judgment in such action is in the
alternative for a return of the property or for its value in case a de
livery can not be had.
Sale of Stock Shares. Permit must be obtained from State Cor
poration Commissioner.
Statute of 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 of the purchase
money. No 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 purchase or sell real estate for compensation
or for a commission. An agreement by its terms not to be performed
in the lifetime of the promise or to make, devise or bequeath by will.
No evidence is admissable to charge a person upon representations
as to the credit of another, unless the representations be in writing.
However where promisor has received property to apply pursuant
to promise or a discharge of 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
ana tanks, when not accompanied by delivery and change of posses
sion are deemed fraudulent as to third parties unless notice of in ten ttion of sale is recorded 5 days before transfer is made in accordance
with law.
Supplementary Proceedings. When an execution Is returned
unsatisfied, the Judgment creditor can obtain an order requiring the
Judgment debtor to appear and answer concerning his property before
the Judge or referee appointed by him. also, in case after the Issuing
of an execution, upon proof by affidavit that the Judgment debtor has
property which he unjustly refuses to apply toward the satisfaction
of the judgment, the Judge may make the order, and Instead thereof.
If 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 dlsose of any portion of his property, and In default of security he may
e committed to prison.
Taxes. On the first Monday of 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 if 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 immediate^’ after the assessment of said personal
property is made. Public Utility corporations are taxed for the
support of the State other property is taxed for county and city
purposes.
Wills. 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 husband, and may alter or revoke the will in like
manner as If she were single. Her will must be executed and proved
In like manner as other wills. Every will other than a nuncupative
will must be In writing, and every will other than an holographic
will and a 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.
C
BANKING AND .COMMERCIAL LAWS—COLORADO
There must be two attesting witnesses, each ot whom must sign his
name as a witness at tne end of the will, at the testator s request,
and in his presence and in the presence of each other. An holo
graphic will is one that is entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form, and may
be made in or out of this State, and need not be witnessed. A wit
ness to a will should always write his name and residence. All
devises or gifts to a subscribing witness are void unless there are two
other competent subscribing witnesses. No will made out of this
State is valid as a will In this State, unless executed according to the
provisions of the code, except that a will made In a State or country
in which the testator is domiciled at the time of his death, and valid
as a will under the laws ot such State or country Is valid in this State
as to personal property. Wills proven out of state may be recorded
in county where testator has left over estate.
Bequests for charity are void unless made more than 30 days
before death and must in no case exceed more than one third of the
estate unless there are no legal heirs. Wills are revoked by marriage
unless provision for the same or an intention not to provide clearly
appears.
1749
4. Out of the State, and within any colony, island possession
or bailiwick of the United States, before any such officer as above
enumerated in relation to acknowledgments in foreign countries
(except ambassadors, etc.) or before any notary public, having a
seal
Actions. 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.
Administration of Estates. All demands not exhibited in six
months are barred, unless such creditor can find other estate of the
deceased not Inventoried, saving, nowever, to tennnes covert, persons
of unsound minds. Imprisoned or beyond the seas, the term of one
year atter 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 the court and in no event
until the claim has been allowed. Administration is granted to
surviving husband or widow, or next ot kin of an Intestate, if they
will accept or are not disqualified; If no such relative appears within
twenty days after death of intestate, administration may be granted
to a creditor: if no creditor appears in ten days after twenty days
from death of intestate, or If next of kin files written relinquishment,
county Judge may select administrator, in counties having a popu
lation of more than 50,000 on default of relatives administration
is made by public administrator. An abbreviated form of administra
tion isprovided for estates not exceeding $500.00. (See Wills; Husband
and Wife; Descents and Distributions.)
Agent.
(See Partnerships.)
Allens. No restrictions as to aliens.
Arbitration. Dltferences may be submitted to arbitration by
consent 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 aruttrators.
Arrest. 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.
In civil actions founded upon tort, where the finding Is in favor of the
plaintiff and the verdict states that defendant was guilty of fraud;
malice, or willful deceit, execution may issue against the body ot
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
j payment ot the debt. The writ of ne exeat is granted under proper
circumstances.
(See Fraudulent Purchasers.)
Assignment. Assignments for the benefit of creditors may be
made in accordance with provisions of the Assignment Act. Assign
ments of wages not covered at the time of the assignment, or ot
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. •
It 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.
Attachments, In actions on contracts, express or implied, the
plaintiff may have the defendant’s property attached, upon filing a
bond in double the amount sued for, with affidavit of plaintiff, his
agent or attorney, setting forth the amount and nature of the debt
claimed, and one or more of the following grounds of attachment:
1. That defendant is a non-resident. 2. A foreign corporation.
3. A corporation whose chief office or business is out of this State.
4. Is evading service, or has been absent from State for four months,
while debt has been overdue. 5. Is about to remove his property
out of State. 6. Has fraudulently conveyed, or (7) fraudulently
concealed or removed or disposed of his property, or (8) and (9) is
about to do either, or has departed or is about to depart from this
State, with the intention of having his effects removed from this
State. 10. Has failed or refused to pay the price or value of any
article delivered to him to be paid for upon delivery, or (11) of any
work or labor performed, or for any service rendered by plaintiff, for
defendant, to be paid for upon completion. 12. That the defendant
fraudulently contracted the debt, or procured the money or property
of the plaintiff. In Justice courts, the 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 of non-resi
dents and absconding debtors can be attached as in most other States.
Banks, State. Any number of persons, not less than three, may
SYNOPSIS OF
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, tIdeate thereof filed. Generally no bank may take as security a
THE LAWS OF COLORADO
■j lien on any part of its capital stock; nor take as security a lien on
any part of the capital stock of other banks; nor take as security a
lien for any person on more than 25 per cent of the total shares of
RELATING TO
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
BANKING AND COMMERCIAL USAGES
tracted in good faith, or in other peculiar circumstances. Stock so
purchased must be sold within three years, and sooner ir this can be
done without impairing the bank's investment. Shareholders in
Revised by Messrs. Gabwood and Gabwood, Attorneys at Law,
banks, savings banks, trust deposit and security associations shall be
Denver. (See Card In Attorneys’ List.)
held individually responsible for debts, contracts, and engagements of
said association in double the amount of the par value of the stock
owned
by them respectively. Any banker, bank officer or employee
Acknowledgments. Of deeds and instruments concerning real
who receives money or property after be shall have had knowledge of
estate, may be taken as follows:
the insolvency of said bank, shall be deemed guilty of a felony, and,
1 Within this State, before any judge, clerk, or the deputy clerk
on conviction, punished by imprisonment in the penitentiary for not
of any court of record, clerk, and recorder of any county, or his deputy,
more than twenty years, or by a fine or not more than $2,000, or both,
or notary public, or before any justice of the peace within his county.
and in addition shall be individually responsible for the property
2 Out of this State and within the United 8tates before the
received. Failure of the bank or banker within thirty days after
secretary of any such State or Territory, the clerk of any court of
receipt of such money or property is prima facie evidence of knowledge
record, any notary public, or any commissioner of deeds for any
of the insolvency at the time of such receipt. Loans to any one
such foreign State or Territory appointed under the laws of this
individual or corporation are limited to 20 per cent of the paid In
State; before any other officer authorized by the laws of any such
stock and surplus of the bank. Loans secured on real estate limited
State or Territory to take and certify such acknowledgment ;provided,
to 25 per cent of total interest bearing securities and to a period of
there shall be affixed to the certificate of such officer, other than
three years, but further loans allowed secured by first mortgage on
those above enumerated, a certificate by the clerk of some court
real estate worth double amount of loan limited to 50 per cent of
of record of the county, city or district wherein such officer resides,
saving deposits and to a period of five years. No bank may engage in
under the seal of such court, as to the official capacity, true signature
trade or commerce; or acquire realty, except such as is necessary for its
and authority of the person certifying such acknowledgment.
business or such as is necessarily acquired in the protection or satis
3. Out of the United States, before any judge, clerk, or deputy
faction of previously existing loans made in good faith. Any realty so
clerk, of any court of record of any foreign kingdom, empire, republic
acquired must be sold in five years, or sooner if possible. No director
state, principality, province, colony, island possession or bailiwick,
mav borrow money in excess of 10 per cent of the capital and surplus
before the chief magistrate or other chief executive officer of any
without the consent of a majority of the directors other than the
province, colony, island possession or bailiwick, before the mayor
borrower. No bank shall loan to any officer or employe thereof.
or chief executive officer of any city, town, borough, county or mu
All banks except National Banks, are under the supervision of the
nicipal corporation, having a seal, or before any ambassador, min
State Bank Commissioner who examines each institution at least
ister, consul, consular agent, charge d'affaires, commercial agent,
twice yearly. If he finds capital impaired, he requires the bank to
or any vice consul, etc., or any diplomatic, consular or commercial
make up deficiency, or takes possession for purposes of liquidation,
agent or representative, or deputy of any thereof, of the United
as circumstances mav require. Insolvent banks may be placed in con
States or any other government or country appointed to reside in
trol of the State Bank Commissioner. Usually no receiver can be
the foreign country or place where the acknowledgment is made,
appointed, nor can a bank make an assignment for creditors. Every
each and all certifying same under his official seal.
bank makes reports of its condition to the commissioner five times
112
1750
BANKING AND COMMERCIAL LAWS—COLORADO
yearly. No bank can do business without a certificate of authority
from the commissioner. Savings banks are subject to the state
banking law under a number of special provisions and restrictions.
Bills of Exchange. (See Commercial Paper.)
Bills of Lading and Promissory Notes. (See Commercial Paper.)
Chattel Mortgages when recorded are good for two years where
sum secured does not exceed $2,500; for five years, when sum does not
exceed $20,000, and not exceeding ten years where sum secured
exceeds $20,000; but If the sum secured be greater than $2,500 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,
by filing an executed instrument of extension of 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 of mortgaged property
is larcenv Chattel mortgae-ee, his agent or attorney, now allowed
thirty days after maturity of debt In which to take possession of
mortgaged chattels, and during said thirty days, or until possession
Is taken by mortgagee, his agent or attorney, the mortgagor shall
have the right to pay said debt and have mortgage discharged as If
debt had been paid at maturity. Chattel mortgages, securing the
purchase price of any article may, at any time within thirty days
after the maturity of the Indebtedness, be extended by the mortgagee
for a period not exceeding two years, and for like periods thereafter.
Chattel mortgages upon household goods used by the family, when
made by husband or wife residing with the other, must be made
by husband and wife Jointly.
Collaterals. Persons holding stocks In corporations as collateral
security not personally liable as stockholders for corporate debts.
A pledgee of stock may nevertheless represent same at corporate
meetings. Transfer of stock either in pledge or otherwise, must be
noted on the books of the company within 60 days or the transfer
is void for some purposes.
Commercial Paper. To be negotiable, an Instrument must con
tain an unconditional order or promise to pay to order, or to bearer,
a certain sum of money on demand, or at a fixed or determinable
time or times. The Instrument may authorize that upon default
of payment of any installment, or of Interest, the whole shall become
due, and In case of non-payment, the sale of collateral securities,
or confession of Judgment, or waive benefit of any law Intended
for the advantage of the obligor. An Instrument payable on
contingency is not negotiable. The date expressed Is prima facie
the true date. One In possession of an incomplete Instrument has
prima fade 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
of a bank or corporation is deemed prima facie payable to the bank
or corporation, and may be indorsed by the corporation or by the
officer. For one to be a holder in due course the Instrument must
be complete and regular, and taken in good faith for value before
overdue, and without notice of any Infirmity in the Instrument
or defect in title. Holder is deemed orima Tacie 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-aceeptance 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. Hills drawn and payable within this State are
Inland; others are foreign. Parties secondarily liable are discharged
by extension of time of payment. Payment by a party secondarily
liable, unless an accommodation party, does not discharge the 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 ts 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 of 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.
Conveyances. No 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. Not necessary for wife to join
In deed except in a conveyance of or a mortgage of a homestead,
entered as such of record.
Witnesses are unnecessary.
Seals
are not necessary but a printed or Ink seal Is advisable. Unacknowl
edged deeds are deemed notice from the dale of filing but they can
not be read in evidence unless subsequently acknowledged or proved,
unless they are on record for over thirty years. (See Acknowledg
ments; Husband and Wife.)
Corporations.
Three or more persons may form a corpora
tion by tiling a certificate in the proper offices, stating the name,
objects for which organized, amount of capital stock, number of
•bares (not less than $1.00 or more than $100.00 per share) term of
existence (not to exceed twenty years, exoept In particular cases),
number of directors (not less tnan 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 le
to be carried on. if part of the oompany’s business is to be carried
on beyond the i'mits 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 of Incorporation
of domestic companies is $20. and 20 ceDta on each thousand dollars
in excess of $50,000 Foreign corporations $30. and 30 cents on each
thousand dollars in excess of $50,000 represented by capital, propertj
and assets employed and located In Colorado. Directors of a mining
or
manufacturing corporation cannot encumber the mines.or plant
of such corporation until the question has been submitted to the
stockholders and a majority vote of all the shares of stock has been
made in favor of such proposition; and such mortgage or encumbrance
without such consent is absolutely void. Cumulative method of
balloting for directors is permitted. Stockholders are liable for
corporate debts to the amount unpaid upon the stock, except that
stockholders in banks, saving banks, trust, deposit, and security
associations are individually responsible in double the amount of the
par value of their stock. When the stock 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 of ths 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. No meetings of the board of directors can be
held outside the State unless so provided by the Articles of Incor
poration Corporations may be dissolved by a two-thirds vote ot
the entire stock. A corporation under the laws of Colorado, may
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 domestic corporations, provided that such renewal
must not extend the life of the foreign corporation beyond the term
fixed by the 8tate 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 offle&s copy of its charter and
incorporation act, and designated an agent upon whom service of
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.
In addition to ail other fees and taxes, every domestic corporation
shall pay on or before the first day of May of each year, an annual
State corporation license tax to the secretary of the State of Co1 >rado,
of ten dollars on a capitalization of one hundre I thousand dollars or
less and ten cents on each one thousand dollars or fractional part
thereof, when the capitalization is more than one hundred thousand
dollars and every foreign corporation shall pay at the same rate
upon that proportion of its capital, property and assets located and
employed in Colorado.
Other provisions of the Revenue bill, approved August 4, 1917.
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 of Corporation Stock.)
Courts. 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 of general jurisdiction.
The supreme court is the court of final appeal, and also has some
original jurisdiction, as in cases of habeas corpus, mandamus and
other remedial writs.
Days of Grace. Are abolished. (See Commercial Paper.)
Depositions. The deposition of a witness out of the State shall
be taken upon commission Issued by the clerk of the court where
the suit is pending, on the application of either party on five days’
previous notice to the other, which notice shall be accompanied
by a copy of the Interrogatories to he attached to the commission.
It may be Issued to a person agreed upon by the parties or to any 1udge
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 of court directing it to be so taken. Depositions can be
taken at any time after starting suit.
Descents and Distributions. 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 bis
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 anti
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 enumerated be living, then to the nearest lineal ancestor and their descendants, the descendants collectively taking the share of their Immediate
&?c.^?tOirs» n. e.t,ua?
Posthumous children or descendants
Jbe intestate, inherit as if horn In the lifetime of the intestate;
un.k J. ren
i le ha.f b'ood and all legally adopted children
shall Inherit as children of the whole blood. Illegitimate children
Inherit if parents subsequently intermarry.
Dower. Common law Dower and curtesy are abolished, as such,
but statutory half of husband and wife in each others estate is given
in lieu of old common law dower and curtesy. (See Statutes.)
Executions. Executions may he Issued where no appeal is taken,
and when placed in the hands of an officer become a Tien upon all
personal property of the debtor not exempt. In the county to which
It is Issued, and It may be directed to the sheriff of any county in
the State. Executions may issue upon judgments at any time after
5 days mom judgment and within twenty years from the date of entry
but from and after twenty years from the entry of judgment, it is
considered satisfied unless revived as provided by law. Debtor or
legal representative has six months to redeem land from sale under
execution. Judgment credtior ha* three months after expiration of
said six months. Judgments can be made a six year lien on real
estate of debtor by filing transcript with recorder of the county where
the real estate is situated.
Exemption!). 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 ts
occupied hy 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 alx months; tools, implements, or stock In trade, up to
$200; one cow and calf, ten sheep and necessary food for six months;
BANKING AND COMMERCIAL LAWS—COLORADO
working animals, up to $200: the library and Implements of a pro
fessional man up to $300; one bicycle and one sewing machine.
Persons not the heads of families are entitled to tools, working animals,
and stock in trade, not exceeding $300 in value. When debtor
is head of family, or wife of head of family, 60 per cent of wages
due at time of levy, under execution, attachment, or garnishment.
Is exempt, when such family resides in the State and is dependant,
wholly or partially upon such earnings for support. If such wages
do not exceed $5 per week at the time of levy, they are entirely
exempt.
Fraud. Parties to any fraudulent sale of any lands, goods or
chattels, or who conceal, secrete, remove or dispose of any goods
or chattels, or are parties to any bond, suit, judgment, or exe
cution, contract or conveyance had made, or contrived with
Intent to deceive and defraud, or defeat, hinder, or delay creditors:
are criminally liable. One who purchases goods on credit under
an assumed or flctitlous name with intent to defraud the seller;
or having purchased goods on credit shall, with intent to defraud
the seller, sell, hypothecate, or otherwise dispose of them out of the
usual course of business, or secrete himself, or abscond, shall be
guilty of a misdemeanor.
Frauds, Statute of. The following must be In writing: Con
tracts for leasing of land for period longer than one year or for
the sale of lands, or any Interest in lands; every agreement which
by its terms is not to be performed within one year: every special
promise to answer for the debt, default or miscarriage of another;
every agreement, promise, or undertaking made upon consideration
of marriage, except mutual promises to marry, and every contract
for the sale of any goods, chattels, or things in action, for the price
of $50 or more, unless the buyer accepts and receives part of such
goodB or the evidence of some of them, or the buyer at the time
pays part of the purchase money. (See Sales of Personal Property.)
Garnishment. (See Attachments.)
Holidays. The following are legal holidays in Colorado: First
day of January. 12th day of February.
22nd day of February.
30th dav of May. 4th day of July. 25th day of December. ThanksDay. Arbor Day, being 3rd Friday in April. Colorado Day,
giving
eing August 1st.
Labor Day, being 1st Monday in September.
Columbus Day, being 12th day of October. In addition to the above,
Saturday is a legal half holiday during June, July and August in all
cities of Colorado having a population of 100.000 and over. Not all
the above are legal holidays for every purpose.
Husband and Wife retain their separate property, real, personal
and mixed owned at marriage, and any such property which shall
come to either of them by descent, devise, or bequest, or the gift
of any person, for their own separate use. Such property of the
wife Is not liable for the husband's debts. Wife may carry on trade
or business, sue and be sued, contract debts, and execute promissory
notes, bonds, bills of exchange, and other instruments precisely as
if sole and may convey real estate without the husband Joining In
the deed. Any chattel mortgage upon, or sale of. the household
goods used by the family, and any conveyance of. or mortgage upon,
a homestead, and any assignment of future wages, or sums to become
due in the future, when made by husband or wife residing with the
other, must be joined In by that other. A married woman may
make a will, but neither husband nor wife shall devise or bequeath
more than half of his or her property away from the other without
the consent in writing of the other, executed after death of the testator
or of testatrix. Marriage revokes a will previously made. The
husband is liable for the debts and liabilities of the wife contracted
before marriage to the extent of the real and personal property
he may receive with or through her, or derive from the sale or rent
of her lands, and no further. The expenses of the family and the
education of the children are chargeable upon the property of both
husband and wile, and in relation thereto they may be sued jointly
or severally. Either husband or wife living together can separately
declare property of record in the name of the other "A Home
stead," by an entry of record over his or her signature. Neither can
mortgage nor convey homestead without the signature of the other.
Interest. The legal rate is 8 per cent, but any other rate not
exceeding 12 per cent may be fixed by agreement. Eight per cent is
allowed on overdue bonds, bills, promissory notes, and judgments.
County, town, and city warrants and other like evidence^ or certif
icates of municipal indebtedness bear 6 per cent interest from presenta
tion. Twelve per cent is the maximum interest rate fixed by the usury
law. of this state.
Judgments. A transcript of judgment may be filed In the office
of the county clerk and recorder of any county In the State, and
thereupon such judgment becomes a lien upon all real property
owned by the judgment debtor in that county. The lien holds for
six years from the date upon which filed (and successive transcripts
may be filed.) An unsatisfied judgment should be revived every
twenty years. (See Executions.)
Limitations. Actions for the recovery of land must be brought
within twenty years after accrual of right. Actions for the recovery
of lands actually occupied by another under a connected title deduoible of record or under tax or execution or other sale ordered by
court must be brought within seven years after possession taken.
If title Is acquired after taking possession, statute runs from date
of acquiring title. Actual possession of land for seven years under
claim and color of title with payment of all taxes for said period,
constitutes the possessor owner according to the purport of his paper
title. The same is true of vacant and unoccupied lands, unless someone
with a better paper title pays the taxes for one or more .vears during
such term of seven years. Actions of debt founded upon contract
express or implied; upon Judgments of courts not courts of record;
for arrears of rent; of assumpsit—or case founded on any contract;
for waste and trepass on land and for replevin, must be begun within
six years after the cause of action accrues. Actions against sheriffs
and coroners, for liability Incurred by them In their official capac
ity, shall be brought within one year after the cause of action accrues,
also actions for assault and battery, false Imprisonment, slander
and libel; also actions for penalties or forfeitures of penal statutes
Bills of relief for fraud 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 ot the action the statute of limitations may be pleaded
In bar of recovery. If a judgment has been rendered without this
State more than three months before suit In this State, and Is based
on a cause of action more than six years old. such cause of action
can be pleaded in bar of the Judgment. The constitutionality of
this latter provision has, however, been attacked, and la very doubt
ful. (See 117 Fed. 400.)
Married Women. (See Husband and Wife.)
Mechanics’ Liens. Mechanics, material-men. contractors, sub
contractors, builders, miners, and all persons of every class performing
labor upon, or furnishing materials used In the construction or repair
of any building, or any other structure or Improvement upon land,
also all who have rendered their professional, skilled service upon
such structure, have a lien upon the property; also those who work or
furnish materials or machinery for the working of a mining claim
or mineral deposit shall have a similar Hen. Liens rank In the
1751
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
Mortgages. Ordinary mortgages on realty are in common use;
also deeds of trust to a public trustee and to private trustees. A
trust deed to private trustee is foreclosed as is a mortgage. In case
the public trustee is named, the property is sold by him as provided
in the deed, after advertisement in a newspaper designated in the
trust deed, and such advertisement shall not be less than four weeks.
Upon a sale by the public trustee, a certificate of sale is issued. A
subsequent incumbrancer may redeem by paying the amount bid,
and the sum so paid shall be added to the amount of the subsequent
incumbrance. The grantor in the trust deed, or his assigns may
redeem from sale within six months. After six months, and within
nine months, a judgment creditor may redeem. After the expiration
of the period of redemption the public trustee executes a deed to
the property to the holder of the certificate of sale, which is assignable.
Redemption from sales of mortgaged property the same as sales under
executions.
Notes and Bills of Exchange. (See Commercial Paper.)
Partnerships, Limited and Special. A limited partnership
may consist of one or more general partners, jointly and severally
liable, and one or more special partners contributing a specified
amount of cash or property, who are not liable for the debts of the
partnership beyond the amount so contributed. Only the general
partners can bind the firm. A certificate must be signed, acknowl
edged, published, and filed of record giving details of partnership.
All persons doing business under any name other than their per^
sonal names, must file an affidavit showing the real persons repre
sented, or they may not bring suits upon debts due, and may be
convicted and fined.
Powers of Attorney. Powers of attorney for the conveyance
of lands must be acknowledged in the same manner as deeds, and
must be recorded In the same county wherein the real property to
be conveyed is situate.
Protest. (See Commercial Paper.)
Replevin. A writ of replevin may Issue In any suit to recover
possession of personal property upon filing a bond in double the
value of the property, with affidavit of ownership or right to pos
session, wrongful detention and value of property, etc. Redelivery
bond in similar amount may be given by defendant In 48 hours after
levy.
Sales of Personal Property. Every sale or assignment of goods
and chattels In the possession or under the control of the vendor
is void, as against creditors or subsequent purchasers in good faith
unless accompanied by immediate delivery and followed by actual
and continued change of possession. Sales of any portion of a stock
of merchandise otherwise than in the ordinary course of trade are
prlma facie fraudulent and void against creditors, unless seller and
purchaser together, before sale, make inventory, showing quantity,
and cost price of the various articles;' and unless purchaser make*
full Inquiry ol the seller as to names and addresses of all creditors
of seller, and the amount due to each, and obtains an answer; and
notifies each creditor of the proposed sale, the cost price, and the
proposed selling price; and unless the purchaser retains the Inventory
and written answer at least six months after the sale. This act
does not apply to sales by legal representatives of public officers
conducting sales in their official capacity and there are some other
exceptions to this law. (See Husband and Wife.)
Suits. (See Actions.)
Taxes are generally a lien on real estate until paid, as also upon
stocks of goods Including new goods added thereto. Taxes may
be paid in two semi-annual installments; the first half on or before
the last day of February, and the residue on or before the last day
of July of the year following the one In which they are assessed.
Tax sales are held in November when tax certificates are given to
purchasers on which treasurer's deed may issue after three years.
Real estate sold for taxes redeemed any time until treasurer's deed
issues. Al! mines and mining property of the class heretofore exempted
by the constitution of tiie State shall be assessed and taxed, and the
taxes levied and enforced by sale of the property taxed in default
of payment, as is provided by’law in the case of other classes of taxable
real properties. Delinquent taxes carry interest at the rate of 12 to
18 per cent per annum. Household goods to the value of $200 belong
ing to a head of a family are exempt.
.. WUIs- „Males of the age of twenty-one years, and females of
the age of twenty-one years, may dispose of their real and personal
property by will, but personal property may be disposed of by will
by any person of the age of seventeen years. For restrictions as to
married persons, see "Hu band and Wife." All wills, whether of
realty or personalty shall be in writing signed by the testator or
some one for him in his presence and at his direction, and attested
in his presence by two or more credible witnesses. Unless otherwise
expressed in the will an after-born child will share in the properly.
Devises and bequests to witnesses are null and void, unless the will
be attested by a sufficient number of witnesses exclusive of such
persons. No will can be revoked otherwise than by the subsequent
marriage of the testator, or by burning, tearing, or obliterating the
same by the testator, or in his presence and by his direction and
consent, or by another will or codicil, declaring the same, duly signed
and witnessed or by a formal annulment thereof. The property
devised by will must lie administered by the county court, and all
property of non-residents must generally be administered to clear title
to real property situated in this State. (See Husband and WifeDescents and Distributions. Administration of Estates.)
%
1752
BANKING AND COMMERCIAL LAWS—CONNECTICUT
SYNOPSIS OF
THE LAWS OF CONNECTICUT
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by Louis M.
Rosenbluth.
Attorney at Law, New Haven.
Accounts. In all actions lor a book debt, the entries of the
parties In their respective books shall be admissible in evidence.
(For limitation of actions on accounts, see Limitations to Suits.)
Acknowledgments. (See Conveyances.)
Actions. There Is but one form of civil action. Mesne process
In civil actions consists of a writ of summons or attachment, 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 i
except in actions before Justices of the peace, who have no equity
Jurisdiction.
Administration of Estates. The probate court has Jurisdic
tion of deceased estates. Administration on Intestate estates Is
granted to the husband or wife, or next of kin or to both. On their
refusal or incapacity, or upon objection by any creditor or heir to
such appointment found reasonable by the court, then to any other per
son whom the court deems proper. Bonds, which must be furnished
by the administrators or executors, are usually made double the
estimated value ot the personal property. Bonds of surety companies
authorized to do business In the State may be accepted. Where
the will waives the bond a nominal bond Is required, usually In double
the amount of the debts of the testator. Deceased estates may be
settled as solvent or Insolvent. Not less than six months are limited
for the presentation of claims against deceased estates, whether
solvent or Insolvent. Such claims are presented to the 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 of notice, and if presented more than six months
after order of notice, shall be entitled to payment only out of the clear
estate remaining after payment of claims exhibited within time
limited. Suit must be brought within four months from the time
of receiving written notice from the administrator or executor of a
solvent estate of the disallowance of a claim. Twelve months Is the
usual time allowed for the settlement of deceased estates. Admin
istrators and executors may mortgage real estate if shown to be for
benefit of the estate, after due application to and hearing in probate
court.
Affidavits. Civil actions do not ordinarily have to be supported
by affidavits. Affidavits have little weight as evidence, and are rarely
admitted as such.
Aliens. Any alien resident of any of the United States, and
any citizen of France, so long as France shall accord the same right
to citizens of the United States, may purchase, hold. Inherit, or
transfer real estate In this State In as full a manner as native-born
citizens.
Arbitration. Parties to any controversy desiring to submit the
same to arbitration under a rule of court, and having signed and
sworn to an agreement to that effect, may, upon filing this 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.
Arrest. The body Is exempt In ordinary actions for debts, except
for money received by one acting in a fiduciary capacity, or where
there Is fraud in contracting the debt or in concealing attachable
property so that it may not be reached by civil process. In actions
generally, no attachment shall be granted against the body 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
oath is overcome by rebutting evidence.
Assignments in Insolvency. Operation of this section sus
pended during continuance of U. S, Bankruptcy Act.
Attachments. 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
unless execution Is levied within sixty days after final judgment
upon the attached personal property, or within four months upon
the attached real estate. (See Exemptions.)
Banks. (See State Banks and Trust Cos.)
Bills of Exchange.
(See Notes and Bills.)
Bills of Lading. Uniform Bills of Lading Act passed In 1911.
Chattel Mortgages. (See Mortgages. Conditional Sales, and
Interest.)
Collateral Inheritance or Succession Tax.
(See Taxes.)
Conditional Sales. All contracts for the sale of 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 of sale, and ac
knowledged before proper authority, and recorded in town where
vendee resides. If not made as required, they are held to be absolute
sales except as between the vendor and vendee or their personal
representatives. A crime to conceal or convey personal property
held on such conditional sale.
Contracts. Ordinary provisions of Statute of Frauds apply.
Courts of probate having 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 ot 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 ths
equitable Interest thus created. Gaming or wagering contracts
are void. Contract of lnoapable person pending appointment of
conservator or of spendthrift pending appointment of overseer, void
when selectmen have filed in town clerk’s office certified copy of
application in case of Incapable person, and certified notice of pro
posed appointment in case of spendthrift. No person who receives
a valuable consideration for a contract, express or implied, made
on Sunday, shall defend any action upon such contract on the ground
that it was so made until he restores such consideration. The Uni
form Sales Act passed in 1907 covers contracts to sell. (See Sales
by Retail Dealers.)
Conveyances. All conveyances of land must be in writing,
signed, sealed, and acknowledged by the grantor, and attested by
two subscribing witnesses. The word “seal” or the letters (L. S.)
may be used for a seal. The acknowledgment Is made by the grantor
before a Judge of a court of record of this State or of the United
States, a clerk of the superior court, court of common 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 iu 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 gran .or and his heirs
must be recorded on the town records of the town in which the land
lies.
Corporations. Corporations may be formed under the general
laws by three or more persons for the transaction of any lawful 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, wnlch shall not be less
than $1,000. A certified copy must be filed in the town clerk’s office.
The organization fee must be paid to the State, of fifty cents on
every thousand of its authorized capital stock up to five million,
no payment to be less than $25.
Stock may be paid for either In cash or property, but If In prop
erty, a majority of the directors must make and slvn upon a record
book a statement of the amount for which the property Is received
and Its actual value. In case of fraud in such valuation, directors
personally liable.
Certificate of organization must be signed and sworn to by a majority
of the directors and filed In the office of the secretary of state, setting
forth the amount of stock subscribed for, amount paid In cash and
in property, names and addresses of subscribers with number of
shares subscribed for, statement that the directors and officers have
been duly elected and by-laws adopted, names and addresses of
directors, the location of the principal office In the State with the
name of the agent In charge.
There must be at least three directors; vacancies in directors may
be filled by remaining directors.
No stock can be Issued until It has been paid for In full. Receipts
for partial payments of stock may be Issued by the treasurer. Cer
tificates for fractional shares cannot be Issued. The corporation
has a lien on capital stock owned by any person for debts due to
It from the stockholder. The corporation may acquire Its own
capital stock with the approval of tliree-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 If
assets are in danger of waste by attachment, or when corporation
has abandoned its business.
Annual statements must be filed In the office of the secretary ot
state and a certified copy thereof In the town clerk's office, either
In January or July, giving the names and addresses of the officers
and directors, amount of outstanding stock not paid for In full with
the amount due thereon, the location of the principal office In this
State with the name of the agent In charge on whom process may
be served. For failure to file annual statement the corporation
may forfeit $25 to the State.
Costs. For case before Justice of the peace, actual cash costs
not less than $5; before city court from $5 to $25, according to
amount Involved; before court of common pleas or superior court,
not less than $25; before supreme court of errors, not less than $50
Attorney's fees not Included. Attorney Justified In asking deposit
of $15 for case In justice’s court and $50 in any other court before
bringing suit. (See Insurance Companies. Injunctions, etc.)
Courts. Terms and Jurisdiction. Superior court holds one term
per year In each county for the trial of civil causes, and has 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, and
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 has
exclusive Jurisdiction up to $1,000. Not less than four terms each
are held In each of the counties named, and there are city courts
Sear
t many of the cities, and a district court at Waterbury, with limited
civil jurisdiction; also town courts In many of the towns. Probate
oourts have Jurisdiction of the settlement of the estates of deceased.
Insolvent, and Incompetent persons, and are established in a targe
BANKING AND COMMERCIAL LAWS—CONNECTICUT
number of probate districts—one for each district. Justices of the
peace have civil jurisdiction up to $100. In New Haven ana Hart
ford jurisdiction of Justice of the peace has been transferred to city
court, except in cases of summary process and bastardy.
Days of Grace. (See Notes and Bills of Exchange.)
Deeds. (See Conveyances.)
Depositions. May be taken in a civil action by a judge or clerk
of any court, justice of the peace, notary public, or commissioner
of the superior court, when witness lives out of the State, or more
than twenty miles from place of trial, is over sixty years of age and
unable to attend the trial, is going to sea, or out of the State, or by
age and infirmity is unable to travel to court, or is confined in jail.
Reasonable notice must be given to adverse party. Deponents must
be cautioned to speak the whole truth, and carefully examined.
They must subscribe their depositions and make oath before the
authority taking the same, who shall attest the same and certify
that the adverse party or his agent was present (if so), or that he
was notified, and shall also certify the reason of taking such 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.
Depositions may be taken In any other State or country by a
notary public, commissioner appointed by the governor of this State,
or by any magistrate having power to administer oaths, and they
may also be taken before a foreign minister, secretary of legation,
consul, or vice-consul appointed by the United States, if taken out
of the United States. A Judge of the superior, common pleas, or
district court can issue a ‘'commission” to take the deposition of
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 Distribution of Property in Intestate Estates.
(As to the share of a surviving husband or wife, see the title Husband
and Wife.) After the share of the surviving husband or wife, the
residue of the real or personal estate is distributed in equal 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
such kindred, then equally to the brothers and sisters of the naif
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.)
Executions. Issue on final Judgment, and are returnable-withln
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.)
Exemptions. Homestead, to the value of $1,000, if declaration
to hold it as such Is recorded. Of the property of any one person,
his necessary apparel and bedding and household furniture necessary
for supporting life; any pension moneys received from the United
States while in the hands of the pensioner (which has been construed
to cover also such pension money wncn deposited In a savings bank);
Implements of the debtor’s trade, his library not exceeding $500
in value; sundry domestic animals not exceeding $150 in value;
so much of any debt which has accrued by reason of the personal
services of the debtor as shall not exceed $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 agat»st the claim for the defendant’s personal board, or
for the rental of any house or tenement occupied by the defendant
as a place of residence when such rental shall not exceed $25); of
the property of any one person having wife or family, two tons of
coal specified amounts of food-stutfs; 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 Attachments. Goods concealed In the hands of agents
or debts due the defendant are reached by foreign attachment which
takes the place of garnishment. No assignment of future earnings
will prevent their attachment when earned unless made to secure
a bona fide debt, due at the date of such assignment, the amount
of which shall be stated therein as nearly as possible, nor unless
the term for which they are assigned shall be definitely limited In
the assignment, nor unless recorded before such attachment in the
town olerk’s office In the town where the assignor resides, or if he
resides without the State, in the town where the employer resides, and
a copy left with the employer. (See also Exemptions.)
Foreign Corporations. Every foreign corporation, except Insur
ance and surety companies and building and loan associations and
Investment companies (a corporation which has power to or does
sell or negotiate Its own choses in action or sell, guarantee, or negotiate
the choses in action of other persons or corporations as 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, ano building and loan associations, shall, before
doing business in this State, appoint *n writing the secretary of the
State and his successors In office to be Its attorney, upon whom
all process in any action or proceeding against it may be served;
and in such writing such corporation shall agree that any process
against It which is served on such secretary shall be of the same
legal force and validity as if served on the corporation, and that
such appointment shall continue In force as long as any liability
remains outstanding against the corporation In this State. Such
1753
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 domestlo
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 such certificate in a book kept
by him for that purpose and shall furnish a certified copy to be
recorded in the office of the town clerk of the town in this State
In which such corporation has Its principal office nr 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 seotion. Every corporation whose officers shall fail to comply with
the requirements of this section shall forfeit to the State $100 for
each failure. The attorney-general may remit this fine.
Foreign Judgments. 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 controversy. 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
rocess in the suit, or actual notice to him of the suit, or at least by
is 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 dillerence 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.
Fraud. All fraudulent conveyances, suits. Judgments, execution!,
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 or duty
belongs.
Garnishment. (See Foreign Attachments.)
Guaranty Companies. (See Surety Companies.)
Holidays. (See Notes and Bills of Exchange.)
Husband and Wife. In all marriages contracted after April 10.
1877, neither husband nor wife acquires by force of the marriage
any right to or Interest in any property held by the other before
the marriage or acquired after the marriage, except as to the share
of the survivor In the property of the other as hereinafter stated.
Wife married subsequent to April 10,1877, may hold and convey
real estate separate from her husband. Separate earnings of the
wife are her sole property. On the death of the husband or wife
the survivor shall be entitled to the use for life of one-third in value
of all the property, real or personal, owned by the other at the time
of his or her decease, after the payment of all debts and charges
allowed against the estate. The right to such third can not lie defeated
by will. Where there is no will the survivor shall take such third
absolutely, and if there are no children, shall take all of the estate
Of the decedent absolutely to the extent of $2,000, and one-half
absolutely of the remainder of said estate.
Injunctions. Any Judge of any court of equitable Jurisdiction
may, on motion, grant and enforce writs of injunction, which shall
be of force 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 the superior court; provided a written
motion for such dissolution shall be prepared before the return day.
Any person wno may oe 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 been granted, and’
upon final hearing judgment shall be rendered adverse to the contin
uance of such injunction, either party may apply to the court rendering
such judgment, representing that he is desirous of taking the case
to the supreme court of errors, and praying that said temporary
injunction may be continued until the final decision therein; ana
unless said court shall be of opinion that great aDd 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
1754
BANKING AND COMMERCIAL LAWS—CONNECTICUT
that above mentioned, a stay of operation of such Injunction, pending
final decision of supreme court of errors, may be granted for similar
reasons. The court In which such case Is pending may, however.
If In Its opinion the cause of tustlce shall so require, dissolve said
temporary injunction or remove the stay of said permanent Injunc
tion while said cause Is so pending In the supreme court of errors.
Insolvency. Suspended, owing to United States Bankruptcy Act.
Interest. Legal rate, in absence of express agreement, 6 per cent;
no more than 6 per cent can be recovered in either case after debt
becomes payable. 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 of this State nor is there any
limit to the interest charge on a bona fide mortgage of real property
exceeding the sum of five hundred dollars. Special law for pawn
brokers.
Judgments carry 6 per cent interest, but are not liens, and execu
tion may be had at any time during the life of both parties. Judg
ment by default may be obtained if the defendant makes no appearance
on or before the second day of the session. Certificate of judgment
may be recorded by judgment creditor or bis assignee in town clerk's
office, and such judgment from the time of filing such certificate shall
constitute a lien upon the real estate described in such certificate, and
if such lien be placed upon real estate attached in the suit upon which
such judgment was predicated and within four months after such
judgment was rendered, it shall hold from the date of such attachment.
Such lien may be foreclosed or redeemed in the same manner as
mortgages upon the same estate, and may also be foreclosed by decree
of sale.
Jurisdiction. (See Courts.)
Liens. (Mechanics’ Liens.) Mechanics’ liens for labor or mate
rials furnished in the construction or repair of any building may be
filed by original contractor within sixty days after completion of work;
but sub-contractor must serve owner of building with notice of his
Intention to claim a lien within sixty days after he shall have ceased
furnishing materials or render services and also file his lien within
said time. Payment made by the owner of 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
as real estate mortgages. Unless foreclosure is instituted, liens
expire two years after filing. (For judgment Liens, see Judgments.)
Limitations to Suits. Open accounts and contracts not under
seal. six years; contracts under seal and promissory notes not 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 of payment after twenty years exists.
Limited Partnerships. Such partnerships (except banking and
Insurance) shall consist of one or more partners, jointly and severally
responsible, as In ordinary cases, to be called general partners; and
one or more partners, furnishing capital to the partnership stock,
whose liability shall not extend beyond the capital so furnished by
them, to be called special partners. Such partnerships shall be
conducted under a company name, in which the name of one or more
of the general partners shall appear; and If any special partner’s
name shall be used in said company name, he shall be held liable
as a general partner. No such partnership shall be deemed to be
formed until the persons forming it shall make, and severally sign
and acknowledge before any officer authorized to take the 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 of such certificate shall
be prima facie evidence of the matters therein contained: and the
partnership shall be responsible only for the acts of the general 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 of business. Terms of such
partnership must be published for six weeks in newspaper published
in county where business is to be carried on. Any such partner
ship may be renewed by filing at any time before Its expiration,
with the town clerk, a sworn certificate of the general partners,
setting forth the time for which said renewal Is made, whether the
special capital has been reduced or Impaired since the last 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 which are general and which are special partners.
If the requirements concerning original certificate are not complied
with, or false certificate be made, all special partners shall be liable
as general partners. All advancements to the capital stock by the
special partners shall be In cash and no part of the capital furnished
by them shall be withdrawn, either In the shape of dividends, profits
or otherwise, at any time while such partnership continues: except
that any special partner may lawfully be paid from the assets of
such partnership, each year during the continuance thereof, a sum
not exceeding 10 per centum upon the cash contributed by him
to the capital stock: provided that such payment shall only be
made out of the net profits actually earned by such partnerships
during the year for which such payment is made. No special partner
shall under any circumstances be considered a creditor, or allowed
to claim as a creditor. No special partner shall be Joined as a party
In any action by or against such partnership unless liable as a general
partner.
Married Women. (See Husband and Wife.)
Mortgages of real estate are executed, acknowledged, and recorded
in the same manner as deeds, and are foreclosed by strict foreclosure
or by a decree of sale. Chattel mortgages to be good against third
parties, where the mortgagor retains possession, must be executed,
acknowledged, and recorded as mortgages of land, and can only be
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 elates 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 tonacco In the leaf In any building. Plano, organ, melodeon, and
any musical Instrument used by an orchestra or band. Brlok burned
or unnurned. in any kiln or brickyard. Hotel keepers may mort
gage the furniture, fixtures, and other personal chattels contained
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 descrlntlon of each article of personal property. Judgment lor deficiency
after sale, permitted.
Notaries Public hold office for two years from first day of Feb
ruary of year in which commissioned, unless commission Is sooner
revoked by governor. May exercise their function at any place In
State. May take acknowledgments, administer oath, take deposition,
sulipiena witnesses to give deposition. The authority and official
acts of any notary may be certified to by the clerk of the superior
court of the county In which he resides, except in New London County,
where the certification Is made by the clerk of the court of common
pleas.
Notes and Bills of Exchange. Negotiable Instruments Act
now In force.
Powers of Attorney. Where a deed Is executed by a power of
attorney It Is recorded with the deed. Powers of attorney to convey
real estate must be executed and acknowledged in the manner required
for the execution and acknowledgment of the conveyance itself.
Private Banks. (See end of State Banks and Trust Companies.)
Probate Law. (See Administration of Estates, Appeals, Assign
ments and Insolvency, Collateral Inheritance Tax, Courts, Descent
and Distribution of Property, Husband and Wife, and Wills.)
Protest. (See Notes and Bills of Exchange.)
Records. Warranty, mongage, 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.)
Redemption. (See Mortgages.)
Replevy. Replevin lies tor 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 prqierty. This
bond or recognizance must be signed by the obligor in presence
of at least one witness other than the authority taking the recog
nizance.
Sale of Retail Business. Any person who makes it his business
to buy commodities and sell the same in small quantities for the
purpose of making a profit and desiring to sell the whole or a large
part of his stock in trade, must file a notice of such intention in the
town clerk’s Office not less than ten nor more than thirty days
prior to such sale.
Sales. Uniform Sales Act passed in 1907.
Service. Service of a writ of summons in case of a resident Is
made by reading it and the complaint accompanying It in the 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 Banks and Trust Companies. A reserve fund of 15 per
oent of aggregate of deposits must be held and maintained In the
banking office, of which 4-15 must be gold and silver coin, demand
obligations of the United States or national bank currency. The
remainder of said reserve fund may consist of balances subject to
demand draft with reserve agents, which are members of the clearing
house associations of New York, Boston, Philadelphia, Chicago,
or Albany; or national banks, state banks, or trust companies, located
In Bridgeport. New Haven, or Hartford, and of railroad bonds which
are legal investments for savings banks. No new io&ns or discounts
may be made when the reserve is below 15 per cent. Bank commis
sioners may apply for appointment of a receiver when the reserve
falls below 15 per cent after thirty days’ notice
No one person, corporation or firm may borrow more than 10
per eent 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 made when
the loans and discounts In the aggregate amount to one-half of the
eapltal 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
dlreotor may be obligated to a bank or trust company In an amount
exceeding 5 per cent of the 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 of
request therefor from the bank commissioners, which shall be published
in a newspaper In the county where the bank or the trust company
is located. Penalty of $10 for each day of delay in transmitting
report.
Words “bank,
trust, or “savings” may only be used by banks,
trust oompanies and building and loan associations Incorporated by
the United States or by the general assembly, but this shall not apply
to firms or Individuals doing business as private bankers or brokers
under their own names, who deposit with the State treasurer a bond
of $10,000, or acceptable securities of that amount tor the protection
of customers from styling themselves bankers In the conduct of their
business. Banks and trust companies maintaining savings depart
ments must Invest deposits according to the laws of the State con
cerning Investments of savings hanks, and must make sworn state
ments to the bank commissioners on October 1st In each year and
oftener If required by the commissioners, of the amount of such
deposits and the securities in which they are invested A State Bank
or Trust Company may be incorporated under General Laws as pro
vided in Chapter 194, Public Acts of 1913.
Suits.
(See Actions.)
Surety Companies. Any corporation with a paid-up capital of
not less than $250,000, Incorporated and organized for the purpose of
transacting business as suretv on obligations for Dersons or corpora
tions, on complying with certain requirements of law mav be accepted
as surety upon the bond of any person or corporation required by
BANKING AND COMMERCIAL LAWS—DELAWARE
Every foreign corporation
before transacting any business in this State must deposit with the
Insurance commissioner a copy of its charter or articles of association,
and sworn statement of the condition of its business The insurance
commissioner may thereafter issue to such company a license to do
business in this State. Such company must appoint the insurance
commissioner its agent on whom process may be served. Such com
pany must file annually on or before March 1st, with the insurance
commissioner a statement of the capital of such company and its
investments and risks. An annual license is granted if annual state
ment lie satisfactory. Local agents must procure certificates of
authority to act as agent from the insurance commissioner. The
insurance commissioner may also at any time examine the
affairs of any surety company doing business in the State. A reserve
fund must be maintained equal to 50 per cent of the gross amount
of premiums received on business in force. No such company can
incur on behalf of any one person or corporation a liability for an
amount larger than one-tenth of its paid-up capital stock and sur
plus without giving collateral security.
Taxes. Land may be sold for delinquent taxes after due adver
tising. only so much being sold as Is necessary to pay taxes and costs.
Owner has one year in which to redeem, by paying the purchase
money, with 12 per cent interest. Bonds, notes, or other choses
In action, except bonds and notes secured by mortgage on real estate
situated in this State, may be exempted from all local taxation by
tying to the State a tax of 2 per cent on the face amount thereof
r five years, or at the optloD of the holder thereof for a greater
or less number of years at a proportionate rate, inheritance taxes
are levied on all property within Connecticut possessed by any resi
dent of Connecticut at the time of his decease, and all tangible prop
erty within Connecticut possessed by a non-resident at the time of
his 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 of charities and on certain particular kinds of property
Rates of the taxes are 1 per cent of the value of all property in excess
of $10,000 passing to any parent, grandparent, husband, wife, lineal
descendant, adopted child, adoptive parent and lineal descendant of
any adopted child, up to $50,000 with graded increases; 3 per cent
on property passing to the husband or wife of any child of such
decedant to any stepchild, brother or sister of the full or half blood
and to any descendant of such brother or sister in excess of $3,000
up to and including $25,000, with graded increases; 5 per cent of the
value of all property in excess of $500 passing to any persons other
than those above mentioned up to and including $50,000 with graded
Increases. Only one exemption is allowed for each class.
Transfer of Corporation Stocks. (See Corporations.)
Trust Companies. (See State Banks and Trust Companies.)
Warehouse Receipts. Uniform Warehouse Receipts Act passed
In 1007.
Wills. All persons of the age of eighteen years, and of sound
mind, may dispose of their estate (real or personal) by will. No
devise, except for public and charitable uses, or for the care ot 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 to their Immediate
Issue or descendants. Wills must be In writing, subscribed by the
testator, and attested by three witnesses, each of them subscribing
In his presence, but they will be effectual here If executed according
to the laws of the State or country where executed. If, after the
making of a will, the testator shall marry, or If a child Is bom to the
testator, and no provision is made in the will for such contingency,
such marriage or birth shall operate as a revocation of such will.
will or codicil Is otherwise revoked by burning, canceling, tearing,
®r 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. Sucb course should always be taken In order to
pass good title to real estate.
Workmen's Compensation Act. Passed in 1913.
the laws of this State to execute a bond.
C
A
SYNOPSIS OF
THE LAWS OF DELAWARE
RELATING TO
BANKING AND COMMERCIAL USAGES
hv Townsend & Barsky, Attorneys at Law. Wilmington.
y
(See Card In Attorneys’ List.)
Acknowledgment. (See Conveyances.)
Actions Suit may be oommenced by capias, summons, and
(where defendant la non-realdent) by attachment of property. Sum
mons In Justice’s oourt 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 bs
served personally on debtor before court sits, or by leaving a copy
ef 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,
any Judge, Justice of the peace, or notary public; and out of the
State by any official duly authorised to take acknowledgments of
deeds, etc.; but before a notary public Is preferable. The affiant
must sign the affidavit.
Assignments and Insolvency. There Is a domestic Insolvent
law providing for a full surrender and equal distribution of all property,
but It Is very seldom used, and there Is no provision in the act for
the discharge of the debtor upon his making an assignment. The
assignee must file a schedule of property assigned within thirty days,
and two appraisers are then appointed by the chancellor. Assign
ments must be for the benefit of all creditors alike.
1755
Attachments. Domestic attachment may be Issued against an
Inhabitant of this State, after a return to a summons or capias Issued
ten days before the return thereof, of non est inventus, and proof
of cause of action; or upon the filing of an affidavit "that the 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 of garnishees. Attachment may be dissolved on entering
security to satisfy any judgment to the extent of the property attached
that may be recovered against the defendant. On return of attach
ment the court appoints three Dersons as auditors of the claims ol
creditors; the creditor attaching is allowed a double share for bis
diligence, not to exceed full amount of debt. Any creditor not duly
presenting his claim receives no share In the distribution. Plaintiff
Is not required to give security. Wages are exempt from 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. i’nlike domes tie
attachments the plaintiff In foreign attachments haa the benefit of
his own discovery and does not share with other creditors. It la
similar to dornestlo 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. By recent amendment in 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.
Banks. There is no general banking aot and but one State bank,
which was chartered by the legislature In 1807. Banking oompanies
can not be formed at present, except by special act of the Legislature.
The holders of stock are taxed at the rate of one-fourth of one per
centum on the cash value of each share of capital stock. There
have been recently several trust companies formed in the State,
either by special act before the 1897 constitution, and by 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 of capital stock
and surplus to any one person.
Bills and Notes. Acceptance should be In writing on the bill.
All checks, notes, drafts, qr bills, foreign or Inland, payable without
time or at sight, are due on presentment without grace.
Chattel Mortgages must be accompanied with an affidavit that
the mortgage Is made for the bona fide purpose of securing a debt,
and not to defraud creditors, and If recorded within ten days from
the acknowledgment thereof, is a valid lien for five years on personal
property, the possession of which may remain In the mortgagor.
Claims Against Estates of Deceased 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 is
granted: 1. To the person entitled to the residue. 2. To one or
more of the creditors. 3. To any suitable person, resident or non
resident. Bond must be given for an amount double the value of
the estate. Notice must be given of claims against the 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 tor 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 ot oourt granting the same, is competent
authority for him to act in this State.
Contracts are Joint and several, unless otherwise expressed.
Conveyances of Real Estate must be under seal (a scroll is
sufficient), and should be executed before one 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, terri
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
offloer, and the seal of his office, court, city, or borough, by certificate
endorsed upon or annexed to the deed; or such acknowledgment
or proof may be taken in any such court and certified under the hand
of tbe 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. Sucb acknowledgment
may also be taken by any commissioner of deeds for tbls State, or
by a notary public of any state or territory. Wife 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 wltmn
three months after sealing and delivery, to avail against creditors,
mortgagee, or bona fide purchasers, without notice.
Corporations. General Corporation Act tor 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.
AU foreign corporations must file with tbe secretary of state, state
ment of assets and liabilities, and tbe name of Its authorized agent
upon whom process may be served; must pay a State tax of $10.00,
and fees of secretary of state (this State tax Is paid but once) must
file wltb tbe prothonotary of each county tbe name of authorized
agent upon whom process may be served.
Costs. Non-resident plaintiffs may be required to give security
for costs.
Courts. Terms and Jurisdiction. The different courts of tbe
State are as follows: Supreme oourt: regular term at Dover third
Tuesday In June and January. Court of chancery and orphans’
56
BANKING AND COMMERCIAL LAWS—DISTRICT OF COLUMBIA
court; regular terras. New Castle County, at Wilmington, on the
fourth Monday In March and second Monday In September; Kent
County, at Dover, third Monday In March and third Monday In
September; Sussex County, at Georgetown, second Monday In March
and first Monday In September. Superior court, and court of general
sessions are held In New Castle County at Wilmington the first Mon
day In January, March, June, and November and third Monday In
September, In Kent County at Dover, the first Monday In July and
the third Monday in February, April, and October, and In Sussex 1
County the first Monday In February, April, and October and last
Monday In June In Georgetown. Oyer and terminer meets on call
of judges. Jurisdiction—The superior court has jurisdiction In all
olvll cases, but If suit be brought for less than $50, costs will not
be recovered. Justice’s jurisdiction, $200. New Court known as
Court of Common Pleas was recently created for New Castle County.
Presided over by one of the Judges of Superior Court. Open con
tinuously except July and August. Jurisdiction of all cases ex con
tractu up to $1,000.
Depositions. In any suit pending, the prothonotary, on appli
cation, enters a rule commission on the part of the applicant to any
commissioner of the State or other person. The commission Issues
on ten days’ notice of Interrogatories filed. Exceptions to Interroga
tories must be filed before the commission Issues, and are heard
before a Judge at chambers. Exceptions to the execution must be
filed within two days after publication. If the commissioner employ
a clerk, add “The clerk by me employed In taking, writing, tran
scribing, and engrossing the said depositions, having first duly taken
the oath assigned to the said commission according to the tenor
thereof.”
Executions are a lien upon personalty from the time the sherlfl
received the writ, If actual levy be made within sixty days there
after. Priority of lien remains in force five years. Execution
may be Issued within five years after date of judgment. An execution
from a justice Is a lien from time writ Is received. If levy be made
within thirty days and priority of writ remains for two years. Execu
tion can not Issue after three years without revival. Goods and
chattels of a tenant are liable to one year's rent in preference to
the execution. There Is no redemption on property sold under
execution or mortgage. In New Castle County wages for a month
of employes of corporations are preferred to the execution. Stay
of six months Is granted in courts of record upon judgments recorded
for want of affidavit of defence, provided security be given within
twenty days after judgment. In justice's courts defendant may have
■lx months’ stay, upon pleading his freehold; nine months’ stay upon
giving security.
Exemptions. No homestead law. Family pictures, bible, and
library; lot In burial ground and pew In church; all wearing apparel;
sewing machines In private families; tools of trade not to exceed $50
In Kent, or $75 in New Castle County; and to the head of a family
In New Castle County $200 of personal property and in Kent County
$150, consisting of household goods only. No additional exemption
in Sussex. The provisions of the exemption law extend and apply
to a person dying and leaving a widow, giving and securing to such
widow the same benefit of exemption that her husband would have had
If living. Wages are exempt from execution attachment in New Cas
tle County except for board or lodging. Pianos and organs leased
or sold under contract exempt from execution process or distress
for rent, provided the lessor or vendor notifies the landlord In
writing of the claim thereof.
Frauds. Sale of goods void as to third parties, unless for a valu
able 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 of Goods in Bulk Law recently
amended imposing penalty upon seller and purchaser where require
ments as to notice on creditors is not carried out.
Garnishment. 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.
Holidays, Legal. January 1st, February 12th, February 22d,
Good Friday, May 30th, July 4th, first Monday in September, October
12—Columbus Day; Day of the general election as it biennially
occurs. Thanksgiving Day, and Christmas, and Saturday afternoon
in New Castle County. If legal holiday falls on Sunday the next
day is observed. Negotiable paper falling due on legal holiday is
due and payable on the next 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.
Homestead. There Is no homestead law in Delaware.
Interest. Legal rate Is 6 per cent. Any person who takes more
for the use or the loan of money shall forfeit and pay to any one suing
for the same a sum equal to the money loaned, one-half for the use
of the State, and the other for the party suing.
Judgments of courts of record are liens upon all real estate of the
debtor in the county where judgment is entered from their date, for
a period of ten years and may be revived and kept alive and a lien
by SEI. FA. or agreement before expiration of ten years from date of
entry. This lien may be extended into either or both the other
counties. Judgments can only be obtained in this State upon judg
ments in other states by suit, upon a certified copy of the record of
said judgment authenticated under the Act of Congress passed
May 26, 1790. Transcripts of judgments recovered before justices
of the peace may be entered in the superior court and thus be made
liens on real estate after execution and return by Constable on goods
of defendant. Satisfaction must be entered within sixty days after
payment. Judgment in Court of Common Pleas is not a lien on
Real Estate unless Transcript filed as in case of Justice of Peace.
Limitations. Contracts not under hand and book accounts three
years, bills and notes under hand six years. Judgments and special
ties are merely presumed to have been paid after the lapse of twenty
years, but this presumption may be overcome by proof to the con
trary. Ail judgments must be renewed witnin ten years in order
to preserve their lien on real estate. The statute does not begin to
run In favor of non-resident debtor until he come Into the State, In
such manner that he may be served with process, and If a debtor
remove after the cause of action has accrued, the time of his absence is
not computed. On recognizances of sheriffs’, administrators’, or
executors’ bonds, within six years from date. Bond of guardian
within three years from the determination of guardianship.
Married Women retain their real and personal property owned
at marriage or received from any person other than the husband.
May receive wages for their personal labor, and prosecute and defend
suits for preservation and protection of their own property, as If
unmarried, and the rents. Issues, and profits of their separate estate
are not controllable by the husband. Dower: The widow Is entitled
to one-third part of all the lands and tenements whereof her husband
was seized at any time during her marriage, unless she shall have
relinquished such right, for and during the term of her natural life .
If her husband dies without Issue or the children of issue she takes a
moiety Instead of a third part of the real estate. A married woman
of the age of twenty-one years and upward may dispose of her prop
erty, both real and personal, by will, without the written consent
of her husband, but subject to his right of courtesy. Two or more
witnesses are necessary for a will. Husband and wife may testify
In all civil actions In which either or both are or may be parties to
the suit.
Mortgages of Real Property are executed and acknowledged like
other deeds. They become a Hen from the time they are lodged
with the recorder. Upon foreclosure of same there Is no redemption
of property. A purchase money mortgage should be recorded within
thirty days to avail against a subsequent Innocent holder.
Proof of Claims. The full Individual names of plaintiffs and
defendants, together with style of doing business, must be stated;
or If a corporation, the laws of what state under which incorporated.
One of the plaintiffs, If a partnership, or the treasurer or cashier
of a corporation, must make affidavit to the amount claimed, giving
an Itemized copv of the cause of action attached thereto. It is
advisable to have the affidavit made before a notary public, though
It may be made before others. (See Affidavit.)
Protest. (See Bills and Notes.)
Replevin. The writ Issues out of the superior court to obtain
possession of goods unlawfully taken or unlawfully detained. No
affidavit Is required, but before the officer to whom It Is directed
can execute It the plaintiff or some substantial person for him must
enter Into bond to such officer In a penalty of double the value of
the goods to be replevined, conditioned to prosecute the suit with
effect, etc. Defendant may give counter bond and retain the goods.
Summons may be served on the defendant by stating the sub
stance of It to him personally at any time before the return of the
writ, or by leaving a copy of It at his usual place of abode In the
presence of some adult person six days before the return thereof.
Against a corporation may be served on the president or head officer, If
residing In the State, and If not, on any officer, director, or manager
of the corporation or duly authorized agent named for said services.
In chancery service may be had by publication under order of the
chancellor. From a justice service must be personal if forthwith,
otherwise four days must intervene before hearing.
Taxes laid and Imposed by the levy court of a county or by the
State for Its own purposes, are a lien upon all the real estate of the
taxable upon whom they are Imposed, for two years, and such lien
has preference to all other liens against him. General assessments
are made every four years.
Wills. Any person of the age of twenty-one years or upward,
of sound mind, may make a will as well of real as personal estate.
Every will must be In writing and signed by the testator, or by some
person subscribing the testator’s name In his presence and by his
express direction, and attested and subscribed In his presence by
two or more credible witnesses, or It shall be void. A will
shall be proved before the register of the county In whloh
the testator resided at the time of his death. A nuncupative
will of personal estate not amounting to over $200 and pronounced
by the testator In his last Illness In the presence of two or more wit
nesses Is valid If reduced to writing and attested by said witnesses
within three days after. Children born after the date of the will
of the parent are entitled to the same share of the parent’s estate
as if such parent had died Intestate.
SYNOPSIS OF
THE LAWS OF
THE DISTRICT OF COLUMBIA
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by John B. Larner. Esq. Attorney at Law.
Washington Loan & Trust Bldg., Washington.
Acknowledgments. The deed of a corporation shall be executed
by having the seal of the corporation attached and being signed with
the name of the corporation, by Its president or other officer, and shall
be acknowledged as the deed of the corporation by an attorney
appointed for that purpose, by a power of attorney embodied In the
deed or by one separate therefrom, under the corporate seal, to be
annexed to and recorded with the deed.
Acknowledgment of Deeds. When any deed or contract under
seal relating to land Is to be acknowledged out of the District of
Columbia, but within the United States, the acknowledgment may
be made before any judge of a court of record and of law. or any
chancellor of a State, any judge or justice of the supreme, circuit, or
territorial courts of the United States, or any justice of the peace or
notary public: Provided that the certificate of acknowledgment
aforesaid, made by any officer of a State or Territory, not having a
seal, shall be accompanied by a certificate of the register, clerk, or
other public officer that the officer taking said acknowledgment was
In fact the officer he professed to be. Deeds made In a foreign coun
try may be acknowledged before any Judge or notary public, or before
any secretary of legation or consular officer or acting consular officer
of the United States as such consular officer Is described In section 1674
of the revised statutes of the United States, and when the acknowl
edgment Is made before any other officer other than a secretary of
legation or consular officer or acting consular officer of the United
States, the official character of the person taking the acknowledgment
shall be certified In the manner prescribed as to deeds out of the Dis
trict of Columbia but within the United States. No deeds of con
veyance of either real or personal estate by Individuals shall be exe
cuted or acknowledged by attorney.
BANKING AND COMMERCIAL LAWS—DISTRICT OF COLUMBIA
Actions. The common law forms of actions are used except as
modified by statutes.
Administration. The probate court, a special term of the
supreme court of the District of Columbia, has exclusive jurisdiction
of the settlement of estates. A written petition stating the facts
In the case must be filed with the register of wills. This petition Is
acted upon by a Justice of the supreme court of the District, who sits
dally. All executors and administrators and guardians are required
to give bond with security to he approved by the court. The testator
may waive the giving of bond, but the court always requires a bond
sufficient to cover the debts and legacies of the deceased not to exceed
double the value of the personal estate. By act of Congress, certain
trust companies 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 properly published. Probate court may order sale of real estate to
pay debts, in case personal assets are insufficient. Assets of non resi
dents in District of Columbia are subject to claims of 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 Columbia, and may acquire real estate by descent. Alien corpora
tions are prohibited from acquiring real estate. Corporations of 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 of real estate. Appeals
may be taken from the supreme court of the District of Columbia to
the court of appeals of the District of Columbia. Appeals may be
taken from the court of appeals to the supreme court of the United
States:
1. In cases whore jurisdiction of trial court is 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 of any law of U. S. is drawn in 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.
Attachments may Issue at Institution of suit or subsequently,
upon affidavit of plaintiff or his agent, supported by that of one or
more witnesses, showing the grounds of his claim and right to recover,
and that defendant Is a non-resident, or evades service of process, or
Is about to remove, assign, dispose of, or secrete property with Intent
to hinder, delay, and defraud creditors, or that the debt was 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 Notes. 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 Mortgages. 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
of real estate: and as to third persons not having notice of it, such
Instrument shall be operative only from the time within said ten
days 'when it is delivered to the recorder of deeds to be recorded.
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 rorm a company
tor 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
tiling any certificate of incorporation, must be satisfied that the entire
capital stock has been subscribed for In good faith. All of 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,
for all debts and contracts made by such company, until the whole
amount of capital stock fixed and limited by such company shall have
been paid In, and a certificate thereof shall have been made and
recorded. Every such company must annually, except insurance
companies, within twenty days from the first of January, make a
report, which shall be duly published and which report shall state the
amount of capital and the proportion actually paid and the amount of
existing debts. Foreign corporations doing business In the District
of Columbia are subject to service of process on their agents or on
the persons conducting their business, or by leaving copy thereof at
the principal place of business of such company, or at the residence
of Its agent. The affairs of the corporation shall be managed by not
less than three nor more than fifteen trustees, a majority of whom
must be residents of the District, to be annually elected, exoept for
the first year, by the stockholders, at such time and place as may be
by the by-laws. The fee of the recorder for filing all certiSrovided
cates of Incorporation where capital stock Is authorized Is forty
(40) cents od each $l,nno of tne amount of the capital of stock the
1757
corporation, as set forth In Its certificate, provided that no fee shall
be less than $25
Courts in session continuously throughout the year. Suits on
contracts, accompanied by sufficient affidavit of right to recover,
result in judgment in twenty days, exclusive of Sundays and legal
holidays, after day of service on detendant, unless defendant hies an
affidavit setting forth facts which. If true, would In law constitute
a valid defense.
Days of Grace abolished.
Deeds. The following form of deed Is now all that Is required In
the District of Columbia to convey a fee simple title to real estate:
This deed, made this... . day of .... in the year
, by me,....
of.............., wltnesseth: That in consideration of (here Insert con
sideration), 1, the said............do grant unto (here Insert grantee’s
name), of ........ , all that (here describe the property)
Witness my hand and seal.
..
(Seal.)
A deed must be acknowledged and recorded with the recoider of deeds
and takes effect from the time of recording. A scroll Is considered a
sufficient seal.
,
Depositions. Depositions of witnesses to be used In any civil
cause whether the case be at Issue or not. may be taken under any of
the following conditions: 1. Where the witness lives beyond the
District of Columbia. 2. Where the witness is likely to go out of the
United States or out of the District and not return in time tor the
trial. 3. Where the witness Is infirm or aged, or tor 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 puidlc or justice of the
peace wtthin any place under the sovereignty of the United States:
Provided, that no such person shall be ellglhle to take such deposition
who Is counsel or attorney for any party to the cause, or who is In
anywise interested In the event of the cause.
Descent and Distribution. The ordinary rules of descent may
be stated as follows: 1. if an Intestate leaves a child or children, or
descendant of such child or children, his property descends to such
child or children, or their descendants, subject only to the dower right
of the widow, if there be one 2. If the estate descended to the
Intestate on the part of the father or mother and there be no child or
the descendant of any child, then to the brothers and sisters and their
descendants. 3. If none, to the mother or father or the ancestors
of the Intestate and their descendants of the blood of the mother or
father, grandmother or grandfather, as the case may be. subject to the
widow's dower. 4. If none, then to the husband or wife anu their
kindred in equal degree, equally. 5. No distinction between whole
and hall blood on part of parent from whom estate descended, 6. If
there be no heli, 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,
of child or descendants, the widow shall have one-third only 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 wdfe 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.
Dower. A wife is entitled to dower in all real estate owned by the
husband at the time of his death, including equitable as well as legal
estates.
Evidence. (See Depositions.)
Executions. Executions may be levied upon all goods and chat
tels of the debtor not exempt, and upon gold and sliver 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, costs and interests from one to six months,
but there can be no stay of execution for wages of servants or common
laborers, nor upon any judgment for less than $5.
Exemptions. (Actual residents.) In addition to wearing
apparel, etc., household furniture to the value of $300. Implements
of debtor’s trade or business to the value of $200, stock for carrying
on business to amount of $200, one horse, harness and cart, wagon
or dray, and earnings of married men or heads of families, not to
exceed $100 per month for two months. Exemptions are only
allowed where the party claiming such is the head of a family or
householder residing In the District.
Foreign Judgments. Suits may be Instituted in the supreme
court of the District of Columbia on any Judgment of a court of record
in any other jurisdiction. The declaration In any such case must be
accompanied by a transcript of the record of such Judgment verified
according to the act of congress in such cases made and provided, and
Judgment in due course may be rendered on such transcript as In
any other case.
Garnishment.. After judgment the writ of garnishment may
Issue against specific property or credits In the hands of the garnishee
and on the return of the writ. If there be credits, the judgment or
condemnation follows. The writ of garnishment can not be Issued
against the United States or the District of Columbia.
Holidays. 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 are not protested until
Monday. Process Is not Issued or served by the marshal after 12
o’clock on Saturday.
Husband and Wife. The wife's property Is exempt from the hus
band's debts. The husband may convey direct to his wife. The
wife may use aU 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 uo married woman under the age ot twenty-one years can
make a valid deed or conveyance. On the death of a married woman the
1758
BANKING AND COMMERCIAL LAWS—FLORIDA
husband Is entitled to an estate by courtesy in her fee simple property
devise of any real estate acquired, by said testator after the execu
tion thereof, unless an intention shall appear to the contrary. Where
of which she dies lutestate. On the death of the wife Intestate her
entire personal estate becomes the property of her husband. The
a devisee or legatee dies before the tastator, leaving issue, such Issue
husband Is not liable for the debts ol his wife contracted before
stands In the place of the deceased devisee or legatee unless a contrary
marriage. A husband, who willfully neglects to provide for wife or
Intention appear from the will.
minor child under sixteen years. In destitute circumstances, may be
adjudged guilty of a misdemeanor, and may be lined, or Imprisoned,
by the court having Jurisdiction.
Interest. The legal rate of Interest In the District of Columbia Is 6
per cent, and In any 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 such recovery be brought within one year. In an
action on a contract for the payment of a higher rate of Interest than
Is lawful In the District, made or to be performed In any state or
Territory of the United States where such contract rate of Interest
Is lawful, the judgment for the plaintiff shall Include such contract
Interest to the date of the judgment and Interest thereafter at the
rate of 6 per centum per annum until paid.
Judgments. Every Judgment Is good and enforceable by an 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 Hens on real estate until recorded In the supreme court of the
District of Columbia.
Jurisdiction. (See Actions, Appeals, and Municipal Court.)
Limitations. 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,
SYNOPSIS OF
one year; all other actions three years. Usual exceptions In favor
of persons under disability. Acknowledgment to revive action on
debt must be In writing. Part payment will take debt out of statute.
Married Women. (See Husband and Wife.)
LAWS
Mortgages. Mortgages are almost entirely supplanted by deeds
of trust, requiring no court proceedings to foreclose. Joining the wife
Is necessary to bar dower.
RELATING TO
Municipal Court. This court which takes the place of what was
formerly known as the Justice of the peace court has Jurisdiction
to the amount of $500. This Jurisdiction Is exclusive when the
BANKING AND COMMERCIAL USAGES
amount claimed for debt or damages or value of personal property
does not exceed $100, and concurrent with the supreme court of the
District of Columbia when It exceeds $100 and not In excess of $500
Revised byM. E. Moret, Attorney at Law, Pensacola.
with right of certiorari In cases of concurrent jurisdiction.
Partnerships. Limited partnerships for the transaction of any
Accounts.
Open accounts are barred In three years.
mercantile, mechanical, or manufacturing business within the District
Acknowledgments must In every Instance be under official seal
may be formed by any two or more persons, but the number of special
If
made
In
the
State
of Florida, may be made before any judge, Justloe
partners Is limited to six. The special partners are not liable for
of the peace, clerk or deputy clerk of a court of record, or notary publle;
the debts of the partnership beyond the fund contributed by them
or
If
made
out
of
the
State, and within the United States, before a
to the capital. A certificate setting forth the firm name; general
United States Commissioner of Deeds appointed by the governor of
nature of the business to be conducted; names of all the general
this State, or before a Judge or clerk of any court of the United States
and special partners Interested therein, distinguishing which are
or of any state, territory or district, having a seal, or before a notary
eneral and which are special, and their respective places of resipublic or Justice of the peace of such state, territory or district, having
ence; the amount of capital contributed by each special partner
to the common stock; and the period at which the partnership Is 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
to commence and terminate must be filed with the clerk of the supreme
out of the United States, before any commissioner of deeds appointed
court after having been acknowledged In the manner prescribed for
by the governor of the State to reside In such country, or any notary
deeds.
publle of such foreign country, or before any minister charge d’affaires,
Protest. May be made by a notary public under his hand and
consul-general,
consul, vice-consul, commercial agent, or vice-com
seal; or by any respectable resident of the place where the bill Is
mercial agent of the United States appointed to reside In such country.
dishonored. In the presence of two or more credible witnesses. Where
Conveyances of dower and powers of attorney for the execution of
a foreign bill, appearing on Its face to be such. Is dishonored by nondeeds to real estate must be executed In like manner as conveyances of
acceptance, It must be duly protested for same; and where such a
real estate. A wife's acknowledgment must be taken separate and
bill which has not previously been dishonored by non-acceptance,
apart
from her husband. Officers must certify that the grantors are
la dishonored by non-payment, It must be duly protested for same.
known to him. The following Is the usual form adopted, viz:
If It Is not protested the drawer and Indorsers are discharged. Where
State of Florida,
/
a bill does not so appear to be a foreign bill, protest thereof In case
County of........................... f
of dishonor Is unnecessary. The protest must be annexed to the bill
Before the subscriber personally appeared............................................ and
or contain a copy thereof and must state the (1) time and place
his wife...................... known to me to be the individuals described In
for presentment; (2) the fact that presentment was made and the
and who exeouted the foregoing Instrument who acknowledged that
manner thereof; (3) the cause or reason for protesting; (4) the
they executed the same for the uses and purposes therein expressed
demand made and the answer given. If any, or the fact that the
and the said................................................................ wife of the said....
drawer or acceptor cannot be found.
. ...........................being by me further and privily examined separate
Records. The exemplification of the record under the hand of
and apart from her said husband, acknowledged and declared that
the keeper of the same, and the seal of the office or court where such
she
executed the same freely and voluntarily, and without fear, appre
record may be made. Is good and sufficient evidence to prove any
hension, compulsion, or constraint of, or from her said husband, and
record made or entered In any of the States or Territories of the United
for
the
purpose of renouncing and relinquishing all her right, of what
States; and the certificate of the party purporting to be the keeper
soever kind. In and to said property.
of such reoord, accompanied by such seal. Is prlma facie evidence
Given under my hand and seal official this................ day of.................
of that fact. A copy of the record of any deed or other Instrument
In writing not of a testamentary character, where the laws of the
,
Notary Public.
State, Territory, or country where the same may be recorded require
My commission expires............................................... (See notaries.)
■uch record, and which has been recorded agreeably to such laws,
SuiJt,8 shall be begun only In the county (or, if less than
and the copy of any will which said laws require to be admitted
$100 In Justice district) where the defendant resides, or where the
to probate and record, by Judicial decree, and of the decree of the
cause of action accrued, or where the property In litigation Is. If
oourt admitting the same to probate and record, under the hand
n any
where defendant does not reside, the plaintiff,
of the clerk or other keeper of such record and the seal of the oourt
pe«,8.?n V? 8 behalf, shall file with the precipe or bill in chanor office In which the record has been made. Is prlma facie evidence
that the suit Is brought In good faith and with no
to prove the existence and contents of such deed, will, or other Instru
Intention to annoy the defendant. This latter provision does not
ment In writing, and that It was executed as It purports to have been.
aK*l,°8t.non‘rcsldent8. Where there are Joint defendants
Taxes. One and one-half per centum upon assessed value of
n any court (or Justice district) where any one of
property, real and personal. Assessments of real estate are fixed at
7here the cause of action accrued or where
approximately two-thirds of real value. Penalty of 1 per cent per
the property In litigation Is. Corporations (domestic) can only be
month for default in payment. Taxes are payable in May of each
sued In a county where they keep an office. Foreign corporations may
year. New assessments are made every two years, for real estate
be sued In any county where they have an agent, or where the cause
(unless improvements are put on) and every year for personal property
of action accrued or where the property In litigation is.
by a permanent Board of Assessors. Intangibles are taxed at the
Administration of Estates. Upon the death of a person intestate
rate of three-tenths of one percentum of the fair value thereof.
or having made a will but appointing no executor, the county judge
appoints an administrator, preferring first the next of kin; but If none
Trust Companies. Trust companies can be organized under the
8Uch apply, then, upon notice given by publication, any creditor or
general provisions of the code on that subject. No trust company
suitable person. No minor can be appointed. If no one applies for
ean be Incorporated with less capital stock than $1,000,000. May
letters of administration within sixty days after death, the probate
do a storage business with a capitalization of not less than $1,200,000.
court may order the sheriff to act. The administrator appointed by
Foreign companies desiring to operate In the District must first com
the court must give bond In amount to be fixed by the probate judge,
ply with the provisions for the organization of trust companies under
respect being had to the value of the estate. The sheriff when acting
the laws of this District.
as administrator Is liable upon his official bond. Claims against an
Wills. All wills and testaments must be In writing and signed by
estate are barred after two years from date of notice given by adminis
the testator, or by some other person In his presence and by his express
trator to present same. Debts due more than five years prior to death
directions, and shall be attested and subscribed In the presence of
are banred, saving to married women, minors and persons non compos
the said testator by at least two credible witnesses. No will, testa
mentis, Imprisoned, or out of State, three years, after removal of disa
ment, or codicil Is effectual for any purpose whatever unless the
bilities. The compensation of the administrator Is determined by
person making the same be. If a male, of the full age of twenty-one
the court and. In addition to compensation for his ordinary duties,
years, and If a female, of the full age of eighteen years, and be at
not to exceed 6 per cent of money received for sales made of persona)
the time of executing or acknowledging it, of sound and disposing
and real property. Administrators must make annual settlements
mind and capable of executing a valid deed or contraot. Any will
before the first day of June each year or forfeit commissions. The
executed after January 17, 1887, and before January 1, 1902, devising
Circuit Court Is empowered to authorize administrator or executor
real estate, from which It shall appear that It was the Intention of
to carry od deceased s trade or business for a reasonable time.
the testator to devise property acquired after the execution thereof
Affidavits may be made before any judge, clerk of the circuit and
■hall be deemed, taken and held to operate as a valid devise of all
supreme courts, Justice of the peace, or notary public.
such property; and any will hereafter exeouted, which shall by words
Allens. No distinction between any citizens, except that they are
of general Import devise all ot the estate or all of the real estate of
not allowed to vote.
the testator shall be deemed, taken and held to operate as a valid
THE
S
OF FLORIDA
BANKING AND COMMERCIAL LAWS—FLORIDA
Appeals. Appellate proceedings for the common law side are by
writ of error, which must be sued out within six months from the date
of the judgment. The record must be filed In appellate court on or
before the return day of the writ, under penalty of dismissal. Ques
tions of fact can only be taken up by bill of exceptions, which must be
(resented within the term of the court unless by special order the time
s extended. Appeals In chancery may be taken within six months
and the law governing writs of error as far as it relates to filing of
transcripts of records and proceedings thereon and filing assignment
of errors, the duty of appellate court In giving judgment. In causing
execution of Its decrees and quashing writs of error, are applicable
to appeals In chancery. Notice of appeal In chancery must be filed
with clerk and recorded In minutes. This gives appellate court Juris
diction.
Arbitration. Parties to the controversy may make a rule of court
of any arbitration to which they may desire to submit by filing a state
ment of agreement of the matters they desire to arbitrate In writing
with the court having jurisdiction, which statement shall Include the
names of the arbitrators and the umpire. An award upon such arbi
tration can only be set aside for fraud, corruption, gross negligence,
or misbehavior of one or more of the arbitrators or umpire, or evident
mistake acknowledged by the arbitrators or umpire who made and
signed the award.
Arrest. No arrest for non-payment of money unless It be for non
payment of a fine lawfully Imposed.
Assignments and Insolvency. Assignments by Insolvents are
provided for by law. Preferences are not allowed. All property,
except that which Is exempt, must be surrendered to the assignee.
Assignee gives bond and winds up estate.
Attachment process may Issue upon affidavit made, setting forth
that amount Is actually due; that plaintiff has reason to believe defend
ant will fraudulently part with his property before Judgment can be
recovered or Is actually removing his property, or Is about to remove
It out of the State, or resides beyond the limits thereof or Is actually
removing or about to remove out of the State, or absconds or conceals
himself or is secreting property or fraudulently disposing of same, or
actually removing, or Is about to remove, beyond the Judicial circuit
In which he she. or they reside. Attachment may also Issue for a debt
not due, upon affidavit 6tating 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 plain
tiff, of the existence of the special ground. The making of the affi
davit causes all debts to mature for the purposes of the suit. Plaintiff
must give bond, with two securities In at least double the debt or sum
demanded Service of notice of the suit may be either personal or
by publication where attachment Is levied and property Is not retaken
by defendant. No arrest allowed In civil actions. Writs of 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 of plaintiff’s
claim, stating the amount, and, except in cases in which plaintiff has
had an attachment or obtained his Anal judgment, he, his agent or
attorney, must enter into bond payable to defendant in double the
amount of the debt, conditioned to pay all costs and damages which
defendant may sustain in consequence of 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. with approval of comptroller, be organized In any city
or town containing not more than 3 000 Inhabitants, and that banks
with a capital stock of $25,000 may. with the approval of the 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 business until
authorized by the comptroller. The comptroller of the State may
Inspect and supervise the business of the bank, except national banks,
and inspect and examine its books, papers, documents, minutes, and
everything pertaining to the acts of 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 in
January of each year amount of stock, property, and contractual
Indebtedness. Before organization the whole of 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 of the United
States, and own ten shares of stock of $100 per share. The comp
troller, with the aid of the courts, winds up the affairs of insolvent
banks. Private bankers are subject to all penalties of the State
banking laws and to the supervision and control of 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 Lading. Bills of lading are evidence against the carrier of
the direction by which freights are to be received, carried, and delivered
—collector or holder of commercial paper, attached to bill of lading not
a warrantor of the quantity or quality of the goods represented thereby,
except by express contract In writing, and the officers agents, and
employes of the carrier are required to comply with the terms of the
bill of lading under penalty of criminal prosecution.
Chattel Mortgages and Deeds of Trust. 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 Drafts. 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 of dishonor.
Collateral Security. It Is a misdemeanor to Bell, pledge, loan, or
In any way dispose of collateral security without the consent of pledgor.
A written agreement may be made at the time of making the pledge
for the sale of the collateral In such manner and upon such terms as
the parties may desire.
Contracts. Statute of Frauds. In order to bind an admin
istrator personally, or any one for the debt or default of another, or
one upon an agreement made in consideration, of marriage; or upon
contracts for the sale lands, tenements, or hereditaments or any uncer
tain interest therein or for any lease thereof for a period longer than
{
1759
one year; or upon an agreement not to be performed within one year,
there must be an agreement, note, or memorandum thereof in writing
signed by the party to be charged, or some one lawfully authorized
by him. Contracts for the sale of personal property must be In writing,
or the property must be delivered or earnest money paid. News
papers and periodicals must either be subscribed for or ordered in
writing.
Conveyances, (See Acknowledgments.) All conveyances of real
estate, or any Interest therein for a term of years of more than two
years, must be by deed In writing, signed, sealed and delivered In the
presence of at least two subscribing witnesses; and In order to be
effectual against subsequent grantees or incumbrances, must be
recorded. The wife's separate estate can be conveyed only by the
Joint deed of herself and husband, and confirmed by her acknowledg
ment. taken separate and apart from her husband. Words of limita
tion unnecessary. Husband may convey direct to wife.
Corporations may be organized for any lawful business under a
general law. Stockholder liable only for amount unpaid upon 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.)
Costs. Non-resident plaintiff required to give $100 bond to secure
costs. The defendant may have suit dismissed If bond Is not given.
Courts. 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.
Creditors’ Bills 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.
Days of Grace are abolished.
Depositions may be taken upon commission when witness resides
out of the county, or Is bound for sea, or Is about to go out of the
State to remain until after the trial of the cause, or Is very aged or
Infirm; or when oath Is made that a material part of the case or defense
depends upon the testimony of such witness. The time for the suing
out of the commission, the names of the witnesses, and the name of
one commissioner must be given to opposite side a reasonable time
before commission Is Issued. Printed Instructions for the guidance of
commissioners usually accompany commission. Fees of not less than
$5.00 a witness are to be taxed as costs by the clerk and paid by losing
party.
Descent and Distribution of Property. Property descends: 1.
To the children and husband In equal shares. 2. If there be no
children then all to the husband or wife. 3. If there be no children,
husband or wife, then to the father 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: 1. To father of Infant.
2. Mother of Infant. 3. Brothers and sisters of Infant. 4. In
case no father, mother, brothers, or sisters or their descendants 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. Allens have same
right as citizens. There are no entailed estates nor right of survivor
ship.
bower. Deceased may not by will cut off his widow’s right to
dower. If dissatisfied with terms of will, she may dissent within
one year after probate of will and she will then be entitled to one-third
of the real estate for life, and, if there are two or more children, to
one-third of 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 of dower. If the
husband die intestate, without children, the wife takes the whole
estate, or dower, at her election.
Evidence. Witnesses not disqualified by reason of Interest. In
civil cases, husband and wife may testify for or against each other.
In suits by or against lunatics or personal representatives, helrs-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,
devises, etc. No person is excused from testifying or producing
documents in trials for bribery, burglary, larceny, gambling, or illegal
sale of liquors, on ground that it may tend to convict him of crime,
but no such person shall thereafter be prosecuted or subjected to any
penalty on account of anything concerning which he may so testify
or produce evidence.
Executions. Executions can be Issued Immediately upon the
entry of the Judgment and within three years thereafter, and are a Hen
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.
Exemptions 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
shall not extend to more Improvements or buildings than the residence
and business house of the owner. No property Is exempt from sale
for taxes or assessments, or for obligations contracted for Its purchase,
or the erection or repair of improvements thereon, or for house, field,
or other labor performed thereon. The wages of every laborer who
Is the head of a family residing In the State, are exempt from garnish
ment.
Foreign Corporations. 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 of Process.)
Foreign Judgments. Judgments obtained In the several courts
of the State, may be recorded In any county and have same force and
effect as If originally obtained therein. Judgments obtained In other
States or countries, merely evidence, and have to be sued upon to be
made effective as judgments
1760
BANKING AND COMMERCIAL LAWS—FLORIDA
Fraud. (See Limitations of Actions.) Obtaining money or prop
erty under false pretense or by falsely personating another, are punish
able criminally.
Garnishment. (See Attachment.)
Guaranty Companies. Guaranty Companies are permitted to
become surety upon bonds for all purposes after complying with certain
statutory requirements.
Holidays. Defined by statute are: Sundays, January 1st. Jan
uary loth, February 22d, April 26th, June 3d, July 4th, First Monday
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 of celebrating it.
Husband and Wife. 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 of her real estate.
Injunctions. Injunctions are granted without bond upon affi
davit of inability to give bond, and upon proof satisfactory to the
Judge that such affidavit is true, and that the statements of the bill
are true. Injunctions are granted to stay proceedings at law; to
restrain the sale of property under execution or decree obtained against
one other than the owner of the property: to restrain the destruction
of timber by cutting, boxing, or otherwise; to restrain a levy upon
exempt property; to prevent the claiming of exemptions upon property
not legally exempt; to prevent the removal from the State of mort
gaged personal property, and to abate bawdy houses and gambling
dens.
Insolvency. Statutes suspended by national bankruptcy law.
Insurance Companies. Foreign and domestic, are placed, by
statute, under control of 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.
Interest. Eight per cent Is allowed on Judgments and contracts
where Interest Is payable but no rate Is specified. Contract for more
than 10 per cent Is usurious, and all Interest forfeited.
Judgments of a court of record are a Hen 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.
Liens. In order to secure a lien by lis pendens, a statement must
be filed with the clerk of the circuit court, and recorded by him in a
book kept for that purpose, setting forth the names of the parties, and
the nature of the relief sought, 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
Hens 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.
Limitations of Actions. 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 contracts or obligations in writing and under seal twenty (20) years;
actions for the recovery of real property, actions on judgments of
courts of tbe 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 of forfeiture taking, detaining or injury to chattels,
for relief on the ground of fraud, upon contract not founded UDon
instrument of 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 of a child, actions against railroad companies for
killing cattle, and any action by the State for a statutory penalty or
forfeiture, one (1) year.
Married Women retain their property, real or personal, owned
at marriage or acquired thereafter by gift, devise, descent, or purchase
and It is not liable for husband’s debts except by her written consent’
executed according to law regulating conveyances of married women’
Husband must join In all sales, transfers, and conveyances of the
wife's property, except when he has been adjudged Insane for more
than a year. Wife may sue concerning her real estate without joining
her husband with her in the suit. Widow takeS as dower a life estate
in one-third part of the real estate of which her husband was seized
and possessed at any time during her coverture, and an absolute 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.
Minors. Both sexes attain their legal majority at the age of 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 of non-age of male minor.
Mortgages of 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 of mortgagee if left in his possession more than two years
without the mortgage being recorded.
Notaries. Both men and women over twenty-one years may be
appointed notaries public. They must renew commissions every four
years May administer oaths, take acknowledgments and perform
marriage ceremony $500 bond is required to be given. Certificate
must show date of expiration of commission.
Notes and Bills of Exchange. Form and interpretation defined
by statute. No requirement that it shall be made payable at a bank
or any fixed place. 5 per cent damages are allowed on foreign 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.
Partnership, Limited, and Special. None.
Powers of Attorney. Any contract or conveyance may be made
by power of attorney. A conveyance of a married woman's real estate
by power of attorney In order to be valid the power of attorney must
be acknowledged by her separate and apart from her husband, and the
acknowledgment must state that she executes it freely and voluntarily,
without compulsion, fear, apprehension, or constraint of or from her
husband. The husband must Join either in the deed or powers of
attorney. Powers of attorney for the conveyance of real estate must
be recorded.
Probate Law. (See Administration of Estates.) The county
Judge has original Jurisdiction of all matters relating to the administra
tion of estates of decedents.
Protest. (See Notes and Bills of Exchange.)
Records. Records of deeds and mortgages are kept in the office of
the clerks of the several circuit courts, and the original must be recorded
in the county within which the property lies. Wills are required
to be recorded with the several county judges and may be probated
in any county In which the deceased left property, If he dies out of the
State. If death takes place within the State, then in the county in
which he has had residence, house, or other place of abode at the time
of his death, and if he had none such, then in the county wherein he
died.
Redemption. None, excepting tax sales.
Replevin lies for goods or chattels wrongfully taken, except when
taken for taxes, or under execution, or at suit of defendant when the
property was originally replevied from defendant and has been
delivered to plaintiff, or when plaintiff Is not entitled to possession.
Affidavit must be filed, describing property sought to be recovered,
and stating that It was not taken for any tax, fine levied by virtue of
any law of the State, nor seized under execution or attachment against
the goods and chattels of the plaintiff; liable to execution and 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.
Service of Process. Out of circuit court, made by the sheriff or
his deputy. Out of county Judge's or justice of peace courts, may be
made by sheriff or constable. Service in civil actions may be made
either upon the person of the defendant, or by leaving a copy at hie
residence with some person over fifteen years of age. Process against
a domestic or foreign corporation mav be served upon anv officer or
business agent of said corporation residing in Florida. If defendant
corporation is doing or has done business in the State, and the sheriff
makes return that ho cannot serve the process because of the corpora
tion's failure to elect officers or appoint agents, the court will make an
order requiring defendant to appear and fefend upon a rulo day after
four weeks publication of the order.
Suits. Actions at law are commenced by filing a precipe with the
clerk. Personal service Is required except in suits by attachment and
garnishment. Writs are returnable on the next rule day, provided
ten days Intervene; If not, then on the rule day In the next succeeding
month. If no appearance of defendant, default Is entered forthwith.
Default may be entered for want of plea or other pleading on rule day.
next after appearance day.
Taxes. Taxes are not due and payable until the first day of Novem
ber, and if not paid by first day of the following April property may be
sold. Owner has two years within which to redeem. Taxes are a
lien from the first day of the year of the assessment, and have the force
and effect of a judgment upon which execution may issue.
Testimony. (See Depositions.)
Transfer of Stock. Stock is transferable in the manner prescribed
in the by-laws. No stock can be transferred until, after all previous
assessments thereon have been fully paid. The transferee succeeds
to all the rights and liabilities of the prior holder.
Warehouse Receipts. Uniform Warehouse Receipts Act adopted,
and effective after July 31st, 1917.
Wills. Any person over twenty-one years old and of sound mind
may make a will. This includes married women. Wills of real estate
must be signed by testator or some person in his presence and by hie
express direction, and must have two witnesses who must subscribe
in testator’s presence. Wills of personal property must be In writing
and signed by the testator or some one in his presence, and by hla
express direction. Nuncupative wills are good as to personal property.
Revocation may be by subsequent will or codicil attested like tbe
original, or by burning, cancelling, tearing or obliterating the same
by the testator or by his direction and consent, or by the act and
operation of 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 of State where they are executed.
BANKING AND COMMERCIAL LAWS—GEORGIA
SYNOPSIS OF
THE LAWS OF GEORGIA
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by Brown, Randolph & Parker, Attorneys at Law,
Atlanta. (See Card In Attorneys’ List.)
Acknowledgments. (See Deeds.)
Actions. All distinction between suits at law and In equity Is
abolished. Equitable relief can be had In superior courts of law.
Administration of Estates. Letters of administration Issue In
the line of preference, first to the husband or wife, second to the next
of kin. relations by consanguinity are preferred to those by affinity.
If there are several of the next of kin In the same degree, preference
Is given to that one selected In writing by those most Interested 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
vest the administration In a county administrator, an officer authorized
by statute for that purpose. Administrators must give bond In double
the value of the estate. Out of the estate of each deceased person,
the first charge, after funeral expenses. Is a year’s support for the
family to be laid oil 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
act as executor of the will of a deceased citizen of this State when he
has the same Interest and will give the same bond as In the case of
foreign administrators Administrators of other States may sue In
this State by filing In the office of the clerk of the court, to which suit
Is brought, a properly authenticated copy of their letters of 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 Facte
the official attestation of the officer Is evidence that he wus 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 tne 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
roperty the defendant will be arrested by the officer to whom process
Pi 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 hls power to produce It.
Assignments. Assignments for the benefit of creditors are per
mitted.
Attachments. 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 of, or
threatens to conceal, hls property. Hable for the payment of hls debts,
or shall make a fraudulent Uen thereon to avoid paying his debts.
Attachment will He 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, hls 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. Bono and
security. In double the amount sworn to, must accompany the affidavit
and the'officers require personal security. Non-resident corporations
are Hable 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 tower to have continual
succession for thirty years, with right of renewal; to sue and be sued;
to have and use a common seal; to appoint officers and agents; to make
by-laws; to hold, purchase, dispose of, and convey such real and
personal property as may be necessary for Its uses and business: to
discount bills, notes, or other evidences of debt; to receive and pay
out deposits, with or without Interest; to receive special deposits; to
deal In foreign exchange; to lend money upon personal security, or
pledges of bonds, stocks, negotiable security; to take and receive
securities by mortgage or otherwise on property real or personal.
The 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 hank shall be chartered with
out a capital subscription In good faith of at least $25,000, of which
net less than 20 per cent, and In no case less than $15 000 must be
paid in before filing the declaration with-the secretary of State. The
corporation shall be responsible to Its credltora 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 hls 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 specked by the bank examiner. No
bank shall loan to Its officers any money without food collateral, or
other ample security, and when such loan exceeds. 10 per cent of the
capital stock it shall not be made until approved in writing by a
majority of the board of directors. No bank or corporation doing
banking business shall reduce Its cash In hand, Including amount due
by banks and bankers, and the value of all stocks and bonds actually
owned and held, below 25 per cent of demand deposits. No bank
1761
or corporation doing a banking business shall loan to any one person,
unless such loan Is amply secured bv 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 declarcJ 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 hls 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 fall 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 Uen for all public money de
posited. State banks are authorized to become members of the
Federal Reserve Bank.
Bills of Lading and Promisory Notes. A bona fide assignee
of a bill of lading of goods will be protected in hls 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 or
banker’s office. 2. Where It Is discounted at a bank or banker's
office. 3. Where It Is left at a bank or banker's office for collection.
Accommodation endorsers, 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.
Cheeks.
(See Notes, etc.)
Collaterals. The holder of a note as collateral security for a debt
stands upon the same footing as the purchaser. Property left In
pledge or pawn may be sold at public sale to the highest bidder, upon
thirty days notice.
Corporations. Power to create corporations In this State Is vested
in the general assembly and the superior courts. Said courts may
grant charters to all corporations except banking, insurance, canal,
navigation, express, and telegraph companies and railroads. The
Secretary of State may grant charters for the corporations above
enumerated in manner prescribed by 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 of business, time for which incorporation is desired,
not exceeding twenty years. The petition and order granting the same
constitute the charter. In such corporations the liabilities of the
stockholder is measured by the amount of unpaid stock subscription
due by him. In the charter of many banks now organized the rule
of personal liability varies. In some banks stockholders are liable as
partners: In others liability exists under the general rule, viz.: to the
extent of twice the amount of stock hold, and in some banks liability
exists only to the extent of stock and unpaid subscriptions thereon.
The payment of 10 per cent of the capital stock is necessary before
commencing business. General powers of corporations are conferred
on all corporations organized in this state, All corporations organized
under the laws of the State or doing business therein are required to
register with the Secretary of State and pay a graded license fee, with
a minimum of $10, maximum $200. Voluntary dissolution of a
corporation may be granted by the Superior Court upon petition filed
by the Corporation if authorized by two-thirds of capital stock. Lost
stock certificates must be established by petition to Superior Court.
Costs. 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.
Courts. 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 ORDINARY hold their
sessions monthly and have Jurisdiction over wills, administrations of
estates, and of the conduct of administrators, executors and guardians.
COUNTY COURTS have monthly and quarterly sessions Their Juris
diction Is limited to controversies not exceeding $30(1
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 of Atlanta, recently established, replaces ihe
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.
Deeds. 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 ileeds 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 hls hand and official
seal. In case of acknowledgment It Is better, as a matter of precaution,
alwavs 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
las? 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 tact, certified on the deed by such
offioer, 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 Id 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 Hen of the Judgment relates back to the date of the con
veyance. In the Federal courta, however, foreclosure caD he made
In equity aa In the case of ordinary mortgages. Usury will, however,
void suoh a oonveyanee.
1762
BANKING AND COMMERCIAL LAWS—GEORGIA
Depositions. 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 of 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. If within the state or if taken without the state, before
any officer of the state or county where taken, authorized by laws of
Georgia to attest deeds or take acknowledgments, upon 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 of.......................... ? „
(Here Insert the county and State
County of........................>ss where the commission is executed.)
By virtue of a commission from the.................. court of ....................
county, we have caused the person in said commission named to come
before us, who being duly sworn true answers to make to certain
Interrogatories thereto annexed, deposeth and answereth as follows:
(Here insert answers of the witnesses to each Interrogatory in order.
3. Let the witness sign the answers; then say: “Answered, sworn to.
and subscribed before us, this .— day of
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 of mall," naming his post-office. Testimony
thus taken must be sent by mail, or by some person specially author
ized by the commissioner to carry it to the court.
Descent and Distribution of Property. The husband is the
sole heir to his intestate wife, unless she leave children, and in that
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 othtfr 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.
fiBower. 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.
Executions. Must follow the Judgment or decree from which they
issue. They are good for seven years and may be renewed for a like
period by entry nulla bona.
Exemptions and Homesteads. Under the constitution and laws
of Georgia, each head of a family or guardian, or trustee of a family
of minor children, or of an aged or infirm person, or a person having
oare and support of dependant females of any age, who is not the
head of a family, shall have exemption of realty, or personalty, or
both, to the aggregate of $ 1600. The debtor shall have power to waive
or renounce, in writing, his right to the benefit of exemption above
stated, except as to wearing apparel and not exceeding $300 worth
of household and kitchen furniture, and provisions. The homestead
or exemption may be sold by the debtor and his wife. If any, with the
sanction of the judge of the superior court of the county where the
debtor resides, or the land Is situated. The proceeds to be re-invested
upon the same uses. A general waiver In writing, of the homestead,
or exemption, is good.
Foreign Corporations. All corporations, except those chartered
and organized under the laws of this State, are held to be foreign
corporations. Such corporations are recognized by comity only;
they are subject to attachment, but have all the rights of replevy and
defense. They cannot exercise any corporate powers or privileges
which by the constitution and laws of Georgia are denied to domestic
corporations or the exercise of which would be contrary to the public
policy of this State. There is otherwise no restriction upon foreign
corporations except in the case of Insurance companies and building
ana loan associations, which are required to make deposits. All cor
porations are subject to license lees for doing business and all are liable
lor taxes on property owned or held in the State. (See Corporations.)
Fraud. 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,
requites 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 of another. 3. An agreement made upon consideration of
marriage, except marriage articles as otherwise provided. 4. Any
contract for the sale of lands, or any Interest In or concerning them.
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, exoept the
buyer shall accept part of the goods sold and actually receive the same
or give something In earnest to bind the bargain or In part payment.
8 An acceptance of a bill of exchange.
’ Garnishments. This process may be invoked In any case. 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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giving bond. Any person may claim exemption from garnishment as
to wages to the extent of $1.25 per day and one-half of the remainder.
Holidays. January 1st (New Year’s Day). January 19th. (Lee’s
Birthday). February 22nd (Washington’s Birthday). April 26th
(Memorial Day). June 3rd (Jefferson Davis' Birthday). July 4th
(Independence Day). First Monday in September (Labor Day).
December 25th (Christmas Day). Thanksgiving Day.
Interest. The legal rate of Interest in Georgia is 7 per cent, but 8 per
cent is legal when contracted for in writing. PartieB charging usury
forfeit the excess if usury 1b 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.
Judgments create liens from their rendition upon the real or per
sonal property of the defendant: all judgments at the same term rank
equally, and property sold by a debtor after Judgment Is obtained
against him is only discharged from the lien of such Judgment, If real
estate, after four years' possession by the vendee, and in cases of per
sonal property, after two years’ Judgments, whether in the United
States court, or in any State court, obtained in any other county than
that in which the defendant resides have no lien on the property of
the defendant in any other county, unless the execution thereon is
recorded in the county of the defendant’s residence. Unless such
execution is recorded as so required within thirty days, its lien will
only date from the time of record. (See Actions.)
Jurisdiction. (See Title Courts.)
License. No license Is required of commercial/travelera. Itinerant
traders must pay license fees.
Liens. 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 liens
on property improved or worked on. Landlords have a general lien
which takes effect from the levy of distress and a special lien on crops
for rent of land on which they are raised. Common law liens of 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.
Limitations. Suits on open accounts are barred after four years,
on promissory notes and bills after six years, on Instruments under
seal after twenty years, on suits for personal injury after two years.
Seven years’ adverse possession of real estate under color of title, and
twenty years’ adverse possession without color of title, will bar the
claims of all persons not laboring under disability. Infants have seven
years to assert their rights, after becoming twenty-one years of age.
Married Women. The wife may contract and sue and be sued in
her own name In respect to her separate estate as a femme sole, except
that she can not bind her separate estate by suretyship for her 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 ot 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 of
necessaries. The wife’s separate property Is not liable for debts contraded 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.
Mortgages. Mortgages are only security for debts. They may
embrace property in the mortgagor’s possession, or to which he has
a right of possession. They may cover a stock in bulk, but changing
in specifics, and after acquiring property. No particular form is
necessary, but It must be 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. All mortgages on personal property must
be recorded in the county where the mortgagor resides ana the prop
erty is located. Mortgages on land must be recorded in the county
where tbe land is situated.
Notaries. Commercial notaries, male or female, are appointed
for four years by the superior courts. They must have seals and are
authorized to attest deeds and mortgages, and make protest of com
mercial paper.
Notes and Bills of Exchange. (See Bills of Lading and Promlsgory 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. Fi’aud 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.
Probate Law. (See Administration of Estates, Deeds and Mort
gages.)
Protests. (See Bills of Lading and Promissory Notes.)
Records. (See Deeds and Mortgages.)
Redemption. There is no redemption in this State under Judicial
sales except In case of sale of property under tax execution where
parties may redeem In twelve months.
Replevy. All property seized under attachment, distress, or other
similar process, may be replevied. Property seized under process
and claimed by the third party may be delivered over upon bond and
security for its forthcoming to answer final Judgment of decree.
Revision. (See Courts.)
Sales. Sales may be made to pay debts, but any sale of stocks of
goods In bulk Is deemed fraudulent unless the seller delivers to the
buyer a list of all creditors and the amount due each. It shall then be
the duty of the buyer to notify the creditors of his purchase. This
notioe must be mailed five days before completion of the purchase.
Taxes. Taxes are a lien upon all the property of the debtor, real
or personal, and Its lien Is preferred as stated In section herein relating
to distribution of the estates. Sales of property for taxes are con
ducted In tbe same manner as other judicial sales. One year In which
to redeem Is allowed.
BANKING AND COMMERCIAL LAWS—IDAHO
Wills. AU persons ol fuU age and sound and disposing memory,
including married women, may make wUIb, and dispose ot their estates.
Wills must be executed In the presence of three witnesses, aU of whom
shall be present, must be called by the testator as witnesses, and must
sign, and shall certify that tney signed, in the presence oi the testator,
and In the presence of eacn other. WUls must be In writing, except
nuncupative wills. WUls of citizens of other States, where executed
according to the laws of me State, and probated in solemn form In such
State, which dispose of real or personal property In Georgia, may be
admitted to probate in this State, when an authenticated copy of the
will Is presented, accompanied by a certificate of the governor of such
State, under the seal of the State, that the official of the court where
such probate was made, had original Jurisdiction of the subject-matter.
WUls are probated In the court of ordinary In the county where the
testator resides at the date of his death. All wills executed out of this
State by citizens of this State to dispose of property In Georgia must
be executed according to our law. 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 recorded on the record
of 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.
SYNOPSIS OF
THE LAWS OF IDAHO
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by
Attorneys at Law, Boise. (See Card
in Attorneys’ List.)
Richards & Haoa,
Acknowledgments. All conveyances and other instruments
required to be acknowledged In this State must be acknowledged. If
within the State, before a Judge or clerk of a court of record, a county
recorder, a notary public, or a Justice of the peace. If without the
State, but within the United States, they must be acknowledged before
any such officer, or a commissioner of deeds for this State, or before
any officer authorized by the laws of this State or Territory to take
such acknowledgment. If without the United States, they must be
acknowledged before a minister or charge d'aflalrs of the United
States, resident and accredited In the country where the acknowledg
ment Is taken, before a consul or vice-consul, a Judge of a court of
record, a duly appointed commissioner, or a notary public. The
certificate of acknowledgment. If made before a justice of the peace,
when used In any county other than that In which he resides, must
be accompanied by a certificate, under the hand and seal of the reoorder
of the county In which the Justice resides, setting forth that such
Justice, at the time of taking such acknowledgment, was authorized
to take the same, and that the recorder Is acquainted with his hand
writing. and believes that the signature Is genuine. Proof of the execu
tion of an Instrument may be made though It has not been acknowl
edged. Form of married woman’s acknowledgment! the same as that
of a single person. (See Conveyances.)
Actions. There Is but one form of civil action In this State. An
action Is commenced within the meaning of the statute when the
complaint Is filed with the clerk. Every action must be prosecuted
In the name of the real party In Interest.
Affidavits are used only to verify pleadings, to prove service of
summons, notice, or other paper, to obtain provisional remedy.
Aliens. Code provisions as to holding property by aliens have
been repealed (Sess. Laws, 1913).
Arbitration. Persons capable of contracting may submit to
arbitration any controversy which might be the subject of a civil
action between them, except a question of title to real property In
fee or for life.
Arrests. The defendant may be arrested In a case for the recovery
of money or damages on a cause of action arising upon a contract,
express or Implied, when the defendant Is about to depart from the
State with Intent to defraud his creditors; also for money or porperty
embezzled or fraudulently misplaced by a public officer or any person
In a fiduciary capacity, or when the defendant has been guilty of
fraud In contracting the debt, or in concealing or disposing of personal
property, for the taking or conversion of which the action Is brought;
or when the defendant has or Is about to remove or dispose of his
property with Intent to defraud his creditors.
Assignments and Insolvency. An Insolvent debtor may be
discharged of his debts by executing an assignment of all his property,
real and personal, which, with a sworn Inventory of property and
schedule of creditors, must be filed In the district court. At a cred
itors' meeting, held after thirty days’ notice given, one assignee Is
appointed, and claims proved. Court will be set aside property
exempt, and Issue order for direct payment of money, where no
mortgage or pledge had been given, or where such security. If given,
has been rendered neugatory by act of defendant. Assignee must
furnish bond, with two sufficient sureties.
Attachments. The plaintiff at the time of Issuing the summons,
or at any time afterwards, may have the property of the defendant
attached as security for the satisfaction of any Judgment that may
be recovered, unless the defendant give security to pay such Judg
ment. Defendant In a civil action for recovery of money or damages,
under a contract, express or Implied, may be arrested, when about
to depart from the State with Intent to defraud, or when the debt
or obligation was fraudulently contracted.
Banks and Banking. Idaho has a full and complete law upon
the formation and regulation of banks and the formation of banking
corporations. No banking corporation can have less than five
directors. All banks, other than national banks, are under the super
vision of the bank commissioner. The banker has a general lien,
dependent upon possession, upon all property In his hands belonging
to a customer for the balance due him from such customer in th«
course of the business. (Sess. Laws 1911 amended 1913.)
Bills of Lading. Uniform act recommended by the American
Bar Association.
Blue Sky Law. Idaho has a blue sky law governing corporations,
unincorporated associations and partnerships, domestic or foreign,
dealing in stocks, bonds, and other securities, excepting United States
bonds, State or municipal securities in Idaho, and Idaho real estate
mortgages. This law requires the filing of various statements, accounts
and other papers, and makes it unlawful to do business in the State
without compliance. (Sess. laws 1913.)
1763
Collaterals. No statutory regulation.
Community Property. All property acquired after marriage
other than by gift, bequest, devise, or descent. Is community property.
The personal earnings of the wife and the income from her separate
property are her separate property.
Contracts. A written Instrument Is presumptive evidence of a
consideration.
Conveyances. Real estate Is conveyed by Instrument In writing,
subscribed by the party or his authorized agent in writing. The
community property can be conveyed or incumbered only by husband
and wife joining in the execution. During the continuance of the
marriage the wife has the management, control, and absolute power
of disposition of her separate property, and may bargain, sell, and
convey her real and personal property, and may enter into any con
tract with reference to the same, in the same manner and to the same
extent and with like effect as a married man may in relation to his
real and personal property. Separate property of wife not liable for
debts of her husband, wife Is not liable as surety unless the obligation
is for her benefit or benefit of 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.)
Corporations. 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
of Incorporation, containing: 1. The name of the corporation 2.
The purpose for which It Is formed. 3. The place where Its prin
cipal business is to be transacted. 4. The term tor 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
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
kind ot road, telegraph or telephone line Intended to be constructed.
2. The estimated length of the road or line. 3. They may provide
In their articles the number of directors which shall constitute a quorum
for the transaction of business, the decision of the majority of such
quorum to be a valid act. 4. Whether meetings of the board shall
be held within or without the State. 5. Whether stockholders shall
be individually liable for debts of corporation. Railroad corporations
must have subscribed, before filing articles, 31,000 per mile; wagon
road corporations, $300 per mile: telegraph corporations, $100 per
mile, and the articles must be verified by affidavit of president, secre
tary, or treasurer named In articles, that such stock has been sub
scribed. AU articles of incorporation must be filed In the office of the
county recorder, In which the principal place of business Is located,
and a copy thereof certified by the recorder, filed with the Secretary
of state. All corporations, except insurance, non-productive mining
companies, co-operative telephone and irrigation companies, must
pay between July 1st and September 1st of each year, a license fee
based on the amount of authorized capital stock, varying from $10 to
$150; a failure to make payment by September 1st entails a penalty
of $10, and a failure to make payment by November 30th entails a
loss of charter for domestic corporations and a loss of the right to do
business within the State for foreign corporations. Between July 1st
and September 1st, all corporations must make an annual report, and
a failure to do so takes away such exemptions as are mentioned above.
Corporation, Foreign. Foreign corporations desiring to do busi
ness in this State, may have all the rights and privileges of like domes
tic corporations, by filing with the secretary of Btate, and In the
office of the county recorder of the county where the principal place
of business of such corporation is to be conducted, a copy of their articles
of business of such corporation is to be conducted, a copy of their
articles of incorporation, and the designation of some person residing
in the county in which such principal place of business is to be located
upon whom process issued by authority of or under any law of this
State may be served. Designation of agent must be filed with Clerk
of District Court instead of County Recorder.
Courts. Terms and Jurisdiction. The judge of the district court
of each of the judicial districts of the State must annually fix the
time for holding the district court In the several counties of his dis
trict; and he may hold such special terms as he deems proper and
necessary- District courts have original Jurisdiction In all civil cases
Probate courts are held In each county continuously, and have
Jurisdiction up to $500, in civil cases, and concurrent Jurisdiction
with justice's courts In all criminal cases. Justices' Jurisdiction. $300.
Curtesy does not exist.
Days of Grace abolished by statute.
Depositions may be taken before any Judge, Justice of the peace,
notary public, or United States commissioner, or any other person
agreed upon by the parties, upon notice served upon the opposite
party, stating the court, action, time, and place, and before whom
the same will be taken, or they may be taken upon commission Issued
by the Judge with Interrogatories attached.
Devolution of Property. (See Succession.)
Dower does not exist. (See Curtesy and Community property).
Employers and Employes. All persons employing mechanics or
laboreiu In working mines, erecting or repairing buildings, construct
ing canals, railroads, etc., must make, record, and publish a state
ment. under oath, setting forth the following: The name of the
owner of the premises where work Is being done or upon which It la
Intended to begin work; the name of the person or company engaged
In or who contemplates engaging In work upon such premises; the
conditions under which such person or corporation Is prosecuting
the work as agent, owner, eto., the principal office of the owner and
the agent in this State; the time and place where payment of laborers
and mechanics will be made. A copy ot this statement must be
posted at the place where work Is prosecuted.
Employer’s Liability Law. Provides for damages not to exceed
$5,000 for Injuries to employee caused by employer’s negligence. (See
Workmen’s Compensation Act).
Executions Issue at any time within five years after Judgment.
The only stay Is by appeal, with secured bond. One year allowed
for redemption from execution and foreclosure sale.
Exemptions. Homestead, not exceeding $5,000, If declaration
of homestead Is duly acknowledged and recorded; office furniture
and library, $200; necessary household and kitchen furniture not
exceeding In value $300, and provisions for family for six months;
certain farm animals, etc., with food for six months; and water
right of 160 inches, when actually used in irrigation; also crops grow
ing or grown on fifty acres of land, leased, owned or possessed by the
person cultivating the same; tools or implements of mechanic neces
sary for his trade of the value of $500; all instruments of surgeons,
etc., also all professional libraries, miner’s dwelling of value $500. and
his pipes, cars, etc., of the value of $200; pack animals and equip
ments, not exceeding $250; team, wagon, etc., of drayman; seventy■ five per cent of the personal earnings of a debtor within thirty days
preceding levy, where earnings are necessary for use of family, resid
ing In this State: the shares held by parties of the Building and Loui
1764
BANKING AND COMMERCIAL LAWS—ILLINOIS
Association to the value of $1,000; provided, such person has no
homestead; all benefits arising out of life insurance, represented by
an annual premium of $250; all property of fire companies. All the
above property may be sold under foreclosure of mortgage, which
includes same or execution issued on judgment for purchase price.
Garnishment. Any personal property or credits In the hands ol
another, belonging to the defendant. Is subject to garnishment, as
are debts owing to him from another If due.
Guaranty, Title and Trust Co. May furnish abstracts, act as
surety, trustee, fiscal agent. Paid up capital of $25,000 required.
Capital deemed security for the performance of their duties.
Holidays. January 1st, February 22nd, May 30th, June 15th,
(Pioneer Day). Fourth of July, first Monday in September (Labor
Day), October 12th. Thanksgiving Day, Christmas, Sundays and
any day on which a general election is held.
Husband and Wife. All the property of the wife owned by her
before marriage, and that acquired afterwards by gift, bequest, or
descent, or that which she shall acquire with the proceeds of her
separate property and her personal earnings and the income from
her separate property, shall remain her sole and separate property, to
the 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 properiy- 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.
Interest. Where there Is no express contract In writing fixing a
definite rate of Interest, the rate Is 7 per cent per annum. Parties
may agree in writing for interest at a rate not to exceed 10 per cem per
annum. Judgments bear interest at the rate of 7 per cent per annum,
compound interest allowed.
Judgments are liens on all real estate of debtor within the county,
from time of docketing, and may be extended to other counties by
filing transcript in recorder’s office.
Lien continues five years.
Justice’s court Judgments become Hens when certified and recorded.
May be revived by Issuing execution within limitation.
Hens, Mechanics. Every person performing labor upon or fur
nishing materials used In the construction or repair of any mining
claim, building, or other Improvement, has a Hen 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 of 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.
Limitation to Suits. Contracts not In writing and open accounts,
four years; Instruments In writing, five years; Judgments and decrees,
six years. Revivor; Only by Instrument In writing; part payment
does not.
Married Women. All property, real or personal, acquired before
marriage aDd acquired after marriage, by gift, bequest, devise, or
descent, and her personal earnings and the income from her separate
property are the wife’s separate property; all other property acquired
after marriage, common property; wife must record inventory of
separate personal property. No estate as tenant by courtesy allowed
the husband, nor dower to the wife.
Mines and Mining. (Principal regulations under United States
Statutes.) Quartz locations may be 1,500 feet long and 300 feet on
each side of the middle of lode. Monuments must be established at
all exterior angles of claim. Claim should be tied to some natural
or permanent monument. Copy of location notice must be posted
at discovery within three days after discovery. Notice of location
must be recorded within ninety days after location: within sixty days
ten-foot shaft must be sunk or Its equivalent. Loeatlon notice must
contain name of locator, name of claim, date of discovery, dimensions,
distance from some permanent, natural, or artificial object: name of
mining district, county, and state. Placer locations made In same
manner as quartz locations, except that within fifteen days after
making location, locator must excavate not less than 100 cubic feet
for purpose of prospecting claim, and must record notice of location
within thirty days after making location.
Mortgages. A real estate mortgage must be acknowledged and
certified, and recorded In like manner as conveyances and deeds
of real property, and Is foreclosed by action In the district court.
Chattel Mortgages must be acknowledged as real estate mortgages
and sworn to by the mortgagor that the same Is made In good faith
without any design to hinder, delay, or defraud creditors. Must be
filed and a minute record made by recorder, unless mortgagee has
ossession. Survives as long as the debt. Mortgages are discharged
y a satisfaction duly executed and recorded, or by entry on margin of
the record, witnessed by recorder.
Negotiable Instruments. Negotiable Instruments are governed
by the rules of the Uniform Negotiable Instrument Law, as reooinmended by the American Bar Association. (See Laws 1903, p. 3H0.) '
Notaries, when requested, to demand acceptance and payment
of foreign, domestic, and Inland bills of exchange or promissory
notes and protest the same for non-acoeptance 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 "Notary
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.
Power of Attorney. 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.
Probate Law. 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, oom pel executors, etc., to render accounts; order sale of prop
erty of estates and minors; order payment of debts dne from estates.
order and regulate distribution of property or estates- compel attend
ance of witnesses and production of all Instruments pertaining to
estates ana property oi minors, ana make such orders as may be neceasarv to exercise all powers conferred. Proceedings of this court are
construed the same as oourts of general Jurisdiction ana like force given
to Its records.
Protest. (See Notaries.)
Records. All deeds, mortgages, real and chattel, and instruments
affecting the title to lands must be recorded, inventory of the
separate personal estate of a married woman when recorded, becomes
prima facie evidence that the property therein enumerated Is her
separate property. In case of levy of attachment upon real estate, a
copy of the writ, with a copy of the notice of levy attached thereto,
must be filed in the office of the county recorder.
Redemption. Property may be redeemed within one year after
sale, on paying purchaser amount paid on sale and 10 per cent addi
tional. Property may be redeemed by successive redemptlonere
within sixty days from last redemption, and within one year from
sale, by paying an additional 4 per cent. In cases of tax sales, the
owner may redeem In three years.
Replevin, Aotlon 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 tbe detention, etc., 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, suhteot to the order of the
court In which the action Is pending, and thereupon retain the posseeslon of the proDerty Involved.
Sales. Uniform sales Act recommended by American Bar Asso
ciation.
Seals. The distinctions between sealed and unsealed Instruments
are abolished. Written contracts presumptive evidence of con
sideration.
Succession to Property. 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 of
community property, the surviving spouse takes all the property,
subject to the right of testamentary disposition of one-half thereof by
the decedent. (See Wills.)
Taxes. All property must be assessed with reference to its value
at twelve o’clock noon on the second Monday of January of each
year at its full cash value, and the owner or other claimant of the
property shall have the same listed for taxation, and such taxes are
a lien from and after that date. If taxes are not paid by the fourth
Monday in December they become delinquent, but half of the taxes
may be paid before said date and the remaining half before the fourth
Monday in June without delinquency. A penalty of 6 per cent is
added on all delinquent taxes. Delinquency certificates issue to the
county for all delinquent taxes dated as of the second Monday in
January, bearing interest at 12 per cent, which are assignable. For
taxes levied for 1917 and subsequent years the owner must redeem
within three years from date of certificate. Holder of certificate
must serve written notice of his intention to apply to Auditor for
tax deed on record owner of land and person in possession at least
three months and not more than five months before the expiration
of three years, and on holders filing affidavit for record showing com
pliance, and after expiration of three years, he is entitled to tax deed
conveying absolute title to the lands. (Compiled Laws Chapter 133).
Trust Companies. (See Guaranty Companies.)
Ware House Receipts The Uniform Warehouse Receipts Act.
recommended by the American Bar Association.
Wills. Every person over the age of eighteen years, and of sound
mind, may make a will. Every will, other than a nuncupative will,
must be In writing, and every will other than an olographic and a
nuncupative will, must be executed by the testatoi subscrtlilng thereto
or some person by his direction, which must tie done In 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.
Workmen’s Compensation Act. See Chapter 81 Session Laws
1917.
SYNOPSIS OF
THE LAWS OF ILLINOIS
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Messrs. Musorave. Oppenheim & Le».
Attorneys at Law, Chicago (See Card in Attorneys’ List.)
Acknowledgments. Of deeds of real estate and other instruments,
may be taken before the following officers: Within this State before
a master in chancery, notary public. United States commissioner,
county clerk, justice of the peace, any court of record having a seal
or any judge, justice, or clerk thereof. Without this State, and within
the United States, its territories, dependencies, or the District of
Columbia, before a justice of the peace, notary public, master In chan
cery, United States commissioner, commissioner to take acknowledg
ments of deeds, mayor or a city, clerk of a county, or before any judge,
justice, clerk or deputy clerk of the supreme, or district court
of 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 surro
gate court of any of the States, Territories, or dependencies of the
justice, clerk or deputy clerk of the supreme, or district court of
the United States, or before any judge, justice, clerk or deputy clerk,
prothonotary, surrogate, or registrar or the supreme, circuit, supe
rior, district, county common pleas, probate, orphans or surrogate
court of any of the States, Territories, or dependencies of the United
8tates. In any dependency of the United 8tates. such acknowl
edgment or proof may also be taken or made before any commissioned
officer In the military service of the United States. When such
acknowledgment or proof Is made before a notary pubUc, United
States.
In any dependency of the United States, such ac
knowledgment or proof may also be taken or made before any com
BANKING AND COMMERCIAL LAWS—ILLINOIS
missioned officer in the military service of the United 8tates. When
such acknowledgment or proof is made before a notary public, United
States commissioner, or commissioner of deeds, it must be certified
under his seal of office. If taken before a mayor of a city, it must be
certified under the seal of the city; if before a clerk, deputy clerk
prothonotary, registrar, or surrogate, under the seal of his court;
if before a justice of the peace or a master in chancery, there must
be added a certificate of the proper clerk under the seal of his office
setting forth that such person was a justice of the peace or master
in chancery at the time of taking such acknowledgment or proof
An acknowledgment or proof of execution may be made in conformity
with the laws of the State, Territory, dependency, or district where
it is made. Without the United States, before any court of any repub
lic dominion, state, kingdom, empire, colony, territory, or depen
dency having a seal, or before any judge, justice, or clerk thereof,
or before any mayor or chief officer of any city or town having a seal,
or before a notary public or commissioner of deeds, or any ambassador,
minister, or secretary of legation, or consul of the United States, or
vice-consul deputy consul, commercial agent, or consular agent of
the United' States. The acknowledgment of a conveyance by a mar
ried 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 of action and pleadings are substantially as at
common law except in justice courts and the municipal court of Chi
cago. wherein the practice has been much simplified. A non-resident
is required to give a bond for costs.
Administration of Decedents’ Estates. Letters testamentary
Issue 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
to act, administration is granted to surviving husband, or wife, next,
of kin or some competent person. The surviving husband or wife,
or the’ person nominated by him or her, has preference. If none of
the above named applies within sixty days from death of deceased,
then administration is granted to the public administrator of the proper
county The administrator must be a resident of the State. A
foreign executor or administrator, within the United States, may
prosecute suits to enforce claims or to sell lands to pay debts. The
Uniform Foreign Probate Act is in force In Illinois. The executor
or administrator must file an inventory within three months from the
date of his appointment and must fix upon a term of court, within
six months from the time he qualifies, for the adjustment of claims,
and publish'notice thereof. The claimant should produce and file
his verified claim, which, if not objected to. may he allowed without
further evidence. If 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 of the issuance of letters of 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 claims not exhibited within one year from granting of
administration are barred. Claims are classified as follows 1. Fu
neral expenses and cost of administration. 2. W idow's or children's
award 3- Expenses of last illness, other than physician's bill, and
demands due household laborers or servants of 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 he
administered by any officer authorized by the laws of the particular
State and if such officer has a seal, his certificate under his official
seal is received as prime facie evidence of 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 mav transfer, devis*. or encumber it.
Arrest and Bail. No person can be imprisoned for debt unless
upon refusal to deliver up his estate for the benefit of his creditors
in such manner as shall be prescribed by law, or in cases where there
is a strong presumption of fraud.
Assignments. The operation of the Illinois Act relating to
voluntary assignments for the benefit of creditors has been suspended
by the national bankruptcy law.
Attachments. A creditor, resident or non-resident, whose claim
is due may bring attachment in a court of record if the amount
exceeds $29 and in justice court for any amount not exceeding $200,
on anv of the following grounds: 1. Where the debtor is a non-resident
of this State 2 Where the debtor conceals himself, or stands In 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 of having his
effects removed from this State. 4. Where the debtor is about to depart
from this State with the intention of having his effects removed from
this State 5 Where the debtor is about to remove his property from
this State to the injury of such creditor. 6. Where the debtor has,
within two years preceding the filing of 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 of such affidavit fraudulently concealed or disposed of his
property so as to hinder or delay his creditors. 8. Where the debtor is
about fraudulently to conceal, assign, or otherwise dispose of his
property or effects so as to hinder or delay his creditors. 9. Where the
debt sued for was fraudulently contracted on the part of the debtor,
nrovided the statements of 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
mnnt, srive bond in double the amount of the claim. Real estate or
nmwinal nronerty may be attached or funds garnished.
The property
or funds may tie released by the debtor giving a forthcoming bond, or
entering into a recognizance in court to pay the judgment.
Ranks Under the state constitution stockholders have a double
Ktork liability and every bank must make, under oath, and publish
earfii ouarter a toll and accurate statement of its affairs. Banks may
in formed under the statute for the purpose of discount and deposit,
hiivine and selling exchange, and doing a general banking business,
except the iXu ng of bills to circulate as money; may loan on both
ne^nnai and r^l estate security, and may accept and execute trusts.
?’he stockholders at the annual meeting on the first Monday of each
litnuarv (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 requireEach director must own ten shares ol stock. Directors are required
to hold monthly meetings. Any director officer or employee making
a false statement as to the affairs of the bank, with intent to deceive,
mav Ha nnnish©d bv imprisonmftnt* No hank can bc^ln business
until the Auditor has issued his certificate th^ lte stwk has been
fully paid; and such certificate has been filed with the Recorder of
Deeds of the County where the bank does business. The Auditor
may withhold his certificate if he be not satisfied “tothecharacter
and standing of the directors and °®cers.
prudenta3d
thirty days after organization must file with the Recorder of I eeds a
certified list of stockholders and the holdings of each. and thereafter
record ^11 transfers. No transfer of stock releases stock liability.
113
1765
Banks are examined under the direction of 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. No more than 15 per cent of the capital stock and surplus
can be loaned to one person, firm, or corporation, but discounts of
bills of exchange drawn against actual values, and commercial paper
discounted for parties actually owning the same, do not come within
this provision. A violation of 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 of Directors The minimum amounts provided for the
capital stock of banks are as follows: In cities of 5,000 or less, $25,000;
up to 10,000, $50,000; up to 50.000, $100,000, and 50,000 or more.
$200,000. Upon impairment of the capital stock the Auditor may
require assessment of stockholders or a reduction of 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 of the
Auditor. Upon deficiency of 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 hanker 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 on 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 of $1,000, or
imprisonment for one year, or both.
Bills of Lading. The Uniform Bills of Lading Law is in force in
Illinois.
A Blue Sky Law went into effect June 10, 1919, governing the
sale of stocks of corporations. Securities are divided into four classes.
Certain securities can be sold only after a full statement in regard
thereto has been filed with the Secretary of State and a permit issued.
The law is stringent. Copies of the law and forms for use thereunder
can be obtained by writing to the office of the Secretary of State,
Springfield, Ill. The act is entitled "The Illinois Securities Law.”
Chattel Mortgages. No mortgage, trust deed, or other conveyance
of 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 for the possession of the
property to remain with the grantor, and the instrument is acknowl
edged and recorded. T he instrument must be acknowledged, in coun
ties having a population of less than two hundred thousand, before a
justice of the peace, police magistrate, a clerk or deputy clerk of a
municipal court, or county judge of the county in which the mortgagor
resides: in counties having a population of 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. If the mortgagor is a
non-resident of 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 of a non-resident of the State, then
in the county where the property is situated. The mortgage is a
valid lien until the maturity of 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 of the record, or by a release
deed. A mortgage on a stcck of goods permitting mortgagor to retain
possession and buy and sell is void as to creditors.
Commercial Paper.
(See Negotiable Instruments.)
Conditional 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 of the vendee or lessee.
Consignments. Agreements to sell on consignment are valid.
If a commission merchant, or party selling on commission, converts
the properly consigned, or after demand fails to account for the pro
ceeds, he is subject to fine and imprisonment, and liable for double
the value of the property so converted.
Conveyances. See Deeds.
Corporations. Corporations, except for charitable, educational,
penal, and reformatory purposes, may be organized only under gen
eral laws. (Const, art. XI, 1.) In all elections .or directors every
stockholder has the right to vote, in person or by proxy, for the number
of shares of stock owned by him, or may cumulate his votes. (Const,
art. XI. 13.)
A now act relating to corporations for profit, became in force
July I, 1919. Corporations may be created under the act for any
lawful purpose, except for banking, insurance, real estate, brokerage,
• the operation of railroads, or the business of loaning money; and may
be organized for any one of the following purposes: (1) “building
corporations," for acquiring, owning, erecting, leasing, or operating
only one building and the site therefor of not more than 80,000 square
feet of land: (2) “agency and loan corporations,” for the purpose of
acting as agents for others in the purchase, salo, renting, and man
agement of real estate and leasehold interests in the operation of an
insurance agency business, in the negotiation of Ioans on real estate
and leasehold interests, of lending money on bonds or notes secured
by mortgages or trust deeds on real estate or leaseholds or on the
mortgage bonds of industrial or railroad companies or of any public
service corporation, or on any State, municipal, or quasi-municipal
bonds, or for the purpose of buying, selling, pledging, mortgaging, or
otherwise dealing in any of such securities; (3) “real estate improve
ment corporations.” for the purpose of owning land, erecting resi
dences thereon, and selling or leasing such land or residences, which
land so owned shall be situated only in the county in which the cor
poration’s principal office is located.
Corporations under the act have jthe following rights, powers, and
privileges: (1) succession; (2) to sue and be sued in its corporate
name; (3) common seal; (4) capital stock, with or without a par value,
and divided into classes (under a ruling of the Secretary of State any
class of stockholders by a provision in the certificate of incorporation
may be deprived of the right to vote); (5) to acquire, and to own,
possess, and enjoy so much real and personal property as may be nec&ssary for the transaction of the business of such corporation, and
to lease, mortgage, pledge, sell, convey, or transfer the same; (6) to
own, purchase, or otherwise acquire, whether in exchange for the
issuance of its own stock, bonds, or other obligations or otherwise,
and to hold. vote, pledge, or dispose of the stocks, bonds, and other
evidences of Indebtedness of any corporation, domestic or foreign;
(7) to borrow money at such rate of interest as the corporation may
determine without regard to or restrictions under any usury law of
this State and to mortgage or pledge its property, both real and
personal, to secure the payment thereof; (8) to elect officers, appoint
agents, define their duties and fix their compensations; (9) to lease,
exchange, or sell all of the corporate assets with the consent of twothirds of all of the outstanding capital stock of the corporation at
any annual meeting or any special meeting called for that purpose;
1766
BANKING AND COMMERCIAL LAWS—ILLINOIS
(10) to make by-laws not inconsistent with the laws of this State for
the administration of the business and interests of such corporation;
(11) to conduct business in this State, other States, the District of
Columbia, the Territories, possessions, and dependencies of the
United States and in foreign countries, and to have one or more
offices out of this State, and to hold, purchase, mortgage, and convey
real and personal property outside of this State necessary and requisite
to carry out the object of the corporation; (12) in time of war to
transact any lawful business in aid of tjie United States in the prose
cution of war, to make donations to associations and organizations
aiding in war activities, and to loan money to the State or Federal
Government for war purposes; (13) to cease doing business and
to surrender its charter; (14) to have and exorcise all the powers
necessary and convenient to carry into effect the purpose for which
such corporation is formed.
The right of a corporation to hold the stocks of other corporations
is restricted to cases where the effect thereof shall not be in restraint
of trade, to lessen competition, nor to create a monopoly. No cor
poration, except as specifically provided herein, shall be organized
under this act for the purpose of acquiring or owning real estate. No
corporation under the act shall, except as provided, by any implication
or construction, be deemed to possess the power of carrying on the
business of discounting bills, notes, or other evidences of debt, or
receiving deposits of money, or foreign coins, or buying and selling
bills of exchange, or issuing bills, notes, or other evidencas of debt
for circulation as money; but corporations created, or to be created
under the provisions of the act, to buy, sell, or otherwise deal in notes
(not including the discounting of notes), open accounts, and other
similar evidences of debt (not including bills of exchange), shall not
be considered within this prohibition. No corporation shall be
created under this act to deal in commercial paper in the exercise of
the functions of bank discount.
The board of directors must consist of at least three persons, who
shall be stockholders and one of whom must be a resident of this
State. The directors exercise the corporate powers of the corporation.
They may hold meetings and transact business outside of this State.
They elect officers, adopt by-laws, and may appoint an executive
committee. The name of a corporation must indicate that it is a
corporation. If the name of a person or copartnership is used, it
must be followed by the word “corporation," “incorporated,”
“limited,” or their abbreviations. The corporation must maintain
an office or place of business in this State, with a resident officer or
agent in charge. The Secretary of State must be kept informed of
any change of address of such office or place of business.
Each share of stock when issued shall have stamped thereon the
amount actually received by the corporation for such stock, either in
cash, property, services rendered, or expenses incurred. Each certi
ficate must contain a statement of the rights of the holder, whether
the stock has been fully paid, and if not what per cent of it has been
paid. When additional payments are made they must be stamped
on the certificate. Shares without par value shall be represented
by certificates which shall state the number of shares, the name of
the holder and the total number of shares the corporation is author
ized to issue. All stockgolders’ meetings must be held within this
State. Directors are elected at the regular annual meeting of the
stockholders. No stock can be voted which shall have been trans
ferred on the books of the corporation within ten days prior to such
meeting. No proxy is good after eleven months from its execution,
except where the stock is pledged as security for a debt to the person
holding the proxy.
Stockholders are liable to creditors, after exhaustion of the assets
of the corporation, only to the amount unpaid on the shares held by
them. An assignee of unpaid stock, with notice, is liable as though
he had been the original subscriber; but only the real owner is liable.
Foreign Corporations. Each foreign corporation organized for
pecuniary profit (except banking, insurance, building and loan, and
surety companies), not now licensed to do business in this State, shall,
before it transacts any business or maintains an office in this State,
procure a certificate of authority therefor from the Secretary of State.
No foreign corporation shall engage or continue in any kind of business
in this State, the transaction of which by domestic corporations is
not permitted by the laws of this State. Each licensed foreign cor
poration shall keep on file in the office of the Secretary of State a
copy of its charter and all amendments thereto: and also a verified
statement giving the location of its principal office in this State and
the name and address of an agent on whom service of process may be
had. No foreign corporation doing business in this State without a
license shall be permitted to maintain any suit at law or in equity
in any of the courts in this State upon any demand, whether arising
out of contract or tort: and all such corporations shall be liable by
reason thereto to a penalty therefor of not less than $250 nor more
than $1000, to be recovered in any court of competent jurisdiction,
in a civil action to be begun and prosecuted by the Attorney-General.
Each corporation (including railroads, domestic and foreign,
other than homestead associations, building and loan associations,
banks, religious corporations, insurance companies, and corporations
not for pecuniary profit) shall make a report in writing to the Secre
tary of State between February 1 and March 1 of each year for the
calendar year ending December 31. preceding, on forms to be pre
scribed and furnished by the Secretary of State. , Such report shall
give the address of the corporation, officers and directors in this State
by street and number; and also shall disclose such facts as necessary
to enable the Secretary of State to ascertain the proportion of its
capital stock represented by business transacted and tangible prop
erty located in this State and such other information as may be neces
sary or appropriate in order to assess the annual license fee or fran
chise tac.
Fees and Taxes. To the Secretary of State on filing a certificate
of incorporation one-twentieth of 1 per cent upon the amount of
authorized capital stock, but in no event less than $20. If the stock
has no par value, for the purpose of fixing the fee the shares are con
sidered as having a par value of $100 each. A like fee upon any sub
sequent increase.
Upon the filing of a certificate of amendment
additional fee of $20. A foreign corporation, other than an insurance
company or building and loan company, upon obtaining a certificate
to do business in Illinois pays the same fees upon the amount of its
capital stock represented by busftiess transacted and tangible property
in Illinois as similar domestic corporations pay upon incorporation.
If the stock of a foreign corporation has no par value, for the purpose
of fixing fees and taxes the shares are considered to have a par value
of $100 each. A domestic corporation or a foreign corporation
licensed to do business in Illinois (except insurance companies), and
which are required to make annual reports, must pay to the Secretary
of State an annual license fee or franchise tax amounting to 5 cents
on each $100 of the proportion of its authorized capital stock repre
sented by business transacted and property located in this State, but
in no event shall any such license fee or franchise tax be less than
$10 for any one year. If it appears from the annual report that the
corporation has no tangible property located in this State, and is
transacting no business in this State, the following franchise tax must
be paid annually: on capital stock of $50,000 or less, $10; between
$50,000 and $200,000, $15; between $200,000 and $500,000, $20;
between $500,000 and $1,000,000, $50; between $1,000,000 and
$10,000,000, $ 00; over $10,000,000, $1,000; stock of no par value
being considered to have a par value of $100 per share. The franchise
tax is payable on July 1 for thejsucceeding twelve _months. _ If a
corporation fails to make an annual report within the time required,
the Secretary of State assesses a franchise tax on the best available
information, adding a penalty of 10 per cent on the amount of such
assessment. In case a corporation fails to file an annual report or
pay its franchise tax as required by the act, the Attorney-General
may take proceedings to forfeit its charter. No corporation required
to pay a franchise tax or fee under the laws of this State shall transact
any business in this State or maintain any action at law or suit in
equity, unless such corporation shall have paid such franchise tax or
such fees when the same become due and payable. Corporations
are taxed on their tangible property, real and personal, within the
State, and also upon the fair cash value of their capital stock, including
franchises, over and above the assessed value of their tangible prop
erty. Shares of stock of domestic corporations, whose tangible prop
erty or capital stock is taxed, are not subject to taxation in the hands
of owners.
A corporation organized for the purpose of accepting and executing”
trusts may be appointed assignee or trustee hy deed, and executor,
guardian, or trustee by will, and any court may appoint such com
pany receiver, assignee, guardian, conservator, executor, adminis
trator, or other trustee, provided such appointment apply to the
estate only and not to the person. Such corporation is not generally
required to give bond for the performance of a trust, but it is required
to deposit with the Auditor of Public Accounts $ '00.000 in bonds of
the United States, or in municipal bonds of this State, or real estate
mortgages, and to make a statement, and file reports with the Auditor
annually. There are special acts also as to the organization of cor
porations not for pecuniary profit, religious corporations, loan asso
ciations, co-operative associations for profit, insurance, etc. Cor
porations, foreign or domestic, under certain restrictions, may do a
surety business.
Courts. Supreme court (seven judges); four appellate courts
(Intermediate court of appeals, three judges each); circuit courts (in
Cook County also superior court of equal jurisdiction): criminal
courts; county courts (which also exercise probate jurisdiction in
counties having lass than 70,000): probate courts (in counties having
over 70,000); municipal courts (Chicago has a municipal court with
a chief justice and thirty associate judges and special practice; and
justice courts.
Days of Grace are abolished. (See Negotiable Instruments.)
Deeds conveying land should be signed, sealed, and acknowledged
by grantor. Scrawl seal is sufficient. No subscribing witnesses are
required. Statutory forms of 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.
No deed releases the right of homestead unless it contains a clause
substantially as follows: “Hereby releasing and waiving all rights
under and by virtue of the homestead exemption laws of the State
of Illinois,” in which case the certificate of acknowledgment should
contain the clause, “including the release and waiver of the right
of homestead.” To release dower the husband or wife must join in
the conveyance, except in the case of 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.
Depositions. 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 of 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 of the time and place of taking the deposition being required
for each one hundred miles. If a witness subpoenaed to give his
deposition before a notary public or other officer under commission
issued by a court of this State, or of any other State or country
declines to appear or testify he may be cited before the circuit court
of the county where he resides and be compelled to appear testify
and produce documents.
Descent and Distribution.
Property in this State
real and
of residents or non-residents dying intestate, descends and
Eersonal.
: distributed as follows: 1. To the children and their descendants
equally, the descendants of a deceased child or grandchild taking
the share of their parents in equal parts. 2. When there is no child
nor descendant or 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 of a child, one half of
the real estate and the whole of the personal estate goes to the widow
or surviving husband absolutely, and the other half of the real estate
descends as in other cases where there are no children or descendants
of children. 4. When there is a widow or surviving husband, and also
a child or descendants of a child, the widow or surviving husband
receives one-third of the personal estate absolutely (see Dower and
Curtesy). 5. If there is uo child or descendant of a child and no
parent, brother, or sister, or descendant of parent, brother or sister
and no widow or surviving husband, the estate descends in equal
parts to the next of kin in equal degree (computing by the Civil Law)
there being no representation among collaterals, except with descen
dants of brothers and sisters, and no distinction being made between
kindred of the whole and the half blood. 6. In case of a widow or
surviving husband, and no kindred, the whole estate goes to the widow
or surviving husband.
Danor. A surviving husband has dower (I. a., life interest in
third part of all lands whereot deceased was seized of au estate of
inheritance during marriage) the same as a widow. Equitable estates,
and land contracted for before death, are subject to dower. Dower
may be barred by jointure assented to; by devise, unless widow or
surviving husband renounces benefit of devise within one year from
date of letters of administration; by divorce as to the party in
fault; and by abandonment coupled with adultery. There is no
dower in land as against a purchase-money lien. The husband or
wife may renounce any devise under the will of the other and take
if there be children, dower and one-third of personal estate or if no
children, ene-half of both real and personal estate absolutely^ ’
Executions. (See Judgments and Executions.)
Executors and Administrators. (See Administration.)
Exemptions. There is a homestead exemption to the extent of
$1,000. It may be extinguished by conveyance joined in by husband
and wife properly acknowledged. (See Deeds.) The following
personal property Is exempt: 1. The necessary wearing apparel,
Bibles, school books, and family pictures. 2. One hundred dollars
worth of other Droperty, to be selected by the debtor, and in addition
when the debtor is the head of a family and resides with the same’
$300 worth of other property, to be selected by the debtor. Exemp
tions can not be claimed out of partnership property. The wages
of a wage earner being the head of a family and residing with ths
same are exempt from garnishment to the amount of $15 per week.
Frauds, Statute of. The following contracts should be in writing:
1. A promise of an executor or administrator to answer any debt or
a
BANKING AND COMMERCIAL LAWS—ILLINOIS
damages out of his own estate. 2. A promise to answer for the debt,
default, or miscarriage of another. 3. An agreement made in con
sideration of marriage. 4. An agreement not to be performed within
one year. 5. Any contract for the sale of 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 of any goods or choses
in action of the value of five hundred dollars or upwards is not enforcible by action, unless the buyer accepts part of 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 of business.”
Garnishment. The funds or property of a debtor in the possession
of 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.)
Holidays, Legal. January 1st. February 12th, February 22d,
May 30th. Julv 4th, October 12th. December 25t.h, first. Monday in
September (Labor Day), Thanksgiving Day, and Tuesdays next after
the first Mondays in November in even years (election days); also
every Saturday from 12 o clock noon to 12 o’clock midnight. Where
holidays fall on Sunday, the day following.
Husband and Wife. (See Married Women.)
Interest. 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 of another: on money due
on the settlement of an account, from the date of ascertaining the
balance- on money received to the use of another, and retained with
out the owner's knowledge: and on money withheld by an unreason
able and vexatious delay of payment. Judgments or decrees draw
interest at 5 per cent. Penalty for contracting for more than 7 per
cent is the loss of the entire interest, and only the principal sum can
be recovered. A written contract, wherever payable, made in this
State between citizens of this State and of 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 of interest, and the Denalty for usury. Usury
must be specially pleaded. But corporations cannot claim a for
feiture of legal interest on account of usury, in all computations
of time, and of interest and discounts, a month is considered to mean
a calendar month, and a year twelve calendar months, and a day
the thirtieth part of a month. A foreign corporation is subject to
the same penalties for usury as a citizen of this State.
Judgments and Executions. A judgment is a lien on real
estate situated In the county where the judgment is rendered, for
seven years from its date. If 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 of 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 of property in the county
court. Judgments may be confessed by a debtor or his authorized
attorney without process in term time or vacation.
Liens. 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 furnished thereto, and the
expenses bestowed thereon at the request of the owner, or the person
having the possession thereof. Agisters and persons keeping, yarding,
and feeding domestic animals have a lien therefor. A11 persons furnish
ing supplies, or doing work for any railroad organized under the laws
of 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 of the delivery of supplies, or the doing of
the work Attorneys have liens on all demands, claims, and causes of
action of their clients, after the service of 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 of any building,
or the improvement of 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 his claim
before payment be made to such contractor; but the lien attaches only
to the portions of the money, bonds, or warrants against which no
voucher or other evidence of indebtedness has been issued and delivered
to the contractor.
Limitations. 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 contract*,
express or implied, on awards of arbitration, to recover damages for
injury to property real or personal, to recover possession of personal
property or damages for the detention of conversion thereof, and
all civil actions not otherwise provided for, five years; actions on
bonds, promissory notes, bills of exchange, written leases, written
contracts, or other evidences of indebtedness in writing, ten years;
but any payment or new promise to pay in writing renews the right of
action on such Instrument for ten years from the time of such payment
or promise. A domestic judgment of a court of record, twenty years;
of a foreign court of record, five years.
Limited Partnership. There are statutory provisions as to the
formation of limited partnerships, but such partnerships are not
common in Illinois.
Married Women. A married woman may sue. be sued, or defend,
as if she were unmarried. When the husband deserts, the wife may
prosecute or defend in his name. The husband has the same right
upon the desertion of the wife. The husband is not liable for the
wife’s torts except in cases where he wou d be jointly responsible
If the marriage did not exist. The husband or wife is not liable for
the debts of the other incurred before marriage, or for the separate
debts of each after marriage, except that the husband and wife are
jointly and severally liable for the expenses of the family and the
education of their children. The wife may contract as if unmarried,
except that she can not carry en a partnership business without the
consent of her husband, unless he has abandoned her. or is insane,
or confined in the penitentiary. She may receive and use her own
1767
earnings free from the interference of 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,
gift, 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 livas 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 of 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 of the facility in the transfer
of the security and, in case of 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 of chancery. In extreme cases, where the mortgaged
property is clearly of 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 of the debt. In other cases, after decree of 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,
them within fifteen months; at the end of which time the real estate
is sold to satisfy the decree and costs, with six per cent interest. The
holder in due course of 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 Instruments. The "Uniform Negotiable Instru
ments Law" adopted in New York and most of the other states is in
force In Illinois, as to all commercial paper executed after July 1,
1M07. 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 of money or articles of personal
property, or any sum of money in personal property, or acknowledges
any sum of money or article of 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 rasident
and solvent, by suit at first term of Court after maturity, in order to
hold the endorser. 2. Accommodation paper may be Issued after
maturity, if such was the intention of the accommodating party.
3. The addition,of words of assignment or guaranty to a blank indorse
ment does not affect the signature as an indorsement unless otherwise
expressly stated. 4. The uefenses of fraud and circumvention in
the execution of negotiable paper, or that the consideration arose
out of a gambling transaction prohibited by sections 130, 131, and
13fi 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
baDk does not authorize the bank to pay it out of his funds on deposit.
6. An alteration of 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 of 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 of the bill, is omitted from the
Illinois act.
Partnership. The Uniform Partnership Act and the Uniform
Limited Partnership Act are in force in Illinois.
Probate Law. (See Administration of Estates.)
Recording Acts. In counties having a population of less than
60,000, the clerk of the circuit court is ex officio the recorder. In
other counties a “recorder of 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 of the defendants reside or may be found. Before
the execution of 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 generally required) in double the value of the
property.
Sales. The Uniform Sales Act has been adopted in Illinois.
Sales in Bulk. Sales of the major part or all of a stock in trade,
chattels or fixtures not in the ordinary course of business, are fraudu
lent and void as to creditors unless the buyer obtains from the seller
an affidavit giving a list of his creditors with addresses and amounts
due each, and the buyer, five days before payment, gives notice to
each creditor personally or by maii of the contemplated purchase.
Taxes. All real and personal property in this State, including
moneys, credits, bonds, stocks, investments, shares of stock in cor
porations (see Corporations), and of 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 May 1st of the ensuing
year: after which time penalties are added. There is an Inheritance
Tax Law, the rates varying according to the relationship of tho heir,
devisee, or legatee, and the amount of the legacies, ranging from 1 per
cent in the cases of widow and children, as to legacies exceeding $10,000
and not exceeding $50,000, to 15 per cent on large amounts bequeathed
to persons not related to the deceased exceeding $100.
Warehouse Receipts. 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 by two witnesses exclusive of such person.
Where the subscribing witnesses are dead, secondary evidence of 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. Wilis or authenticated
copies, affecting estate within this State, duly proved outside of this
State, in accordance with the law of the State where executed, accom
panied with a certificate of the proper officer of that fact, may be
recorded here. Wills executed and published out of 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 Act is in force in
Illinois. All original wills, after being filed, must remain in tho office
of the county (or probate) court. Children may be disinherited.
1768
BANKING AND COMMERCIAL LAWS—INDIANA
SYNOPSIS OF
THE LAWS OF INDIANA
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Messrs. Pickens, Moores, Davidson
and Pickens, Attorneys at Law, Indianapolis.
(See Card In Attorneys’ List.)
Acknowledgments. All conveyances of real estate, except leases
for less than three years, must be in writing, and acknowledged and
recorded at once, or they will not bind third parties. Within the
State acknowledgments may be taken before a judge or cleik of a
court of record, justice of the peace, auditor recorder, notary public,
member of the general assembly, or mayor of a city, and in other
states and territories before the like officers, or a commissioner of
deeds for Indiana. In any foreign country, before a diplomatic or
consular officer of the United States. If such acknowledgment or
is in some other than the English language, or is not attested
groof
y such official seal, it must be accompanied by the certificate of an
officer of the United States, to the effect that it is duly executed accord
ing to the laws of such foreign country, and that the officer has legal
authority to certify to the proof or acknowledgment and the meaning
of his certificate, if made in a foreign language. Wife must join in
deeds and mortgages of husband’s lands In order to carry her in
choate one-third interest in husband’s lands. No separate acknowl
edgment of 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.
Actions. The distinctions between law and equity are abolished.
The statute provides hut one form of action. Pleadings are governed
by code. Non-resident plaintiffs must give bond to secure costs
Administration of Estates. Except in Marlon County, whloh
has a separate probate court, the circuit court has exclusive probate
Jurisdiction. In cases of Intestacy letters are granted In following
order. 1. Widow or widower. 2. Next of kin. 3. Largest 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 executtfr 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; bul
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, hls agent, or attorney,
that the claim Is Just and wholly unpaid. If claim be secured by a
lien, the Uen 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 fit davits may be taken before any officer qualified to take acknowl
edgments (see above). Date of expiration of officer’s commission
must he certified.
Aliens. Resident aliens who have declared their Intention to
become citizens, may acquire, hold, and enjoy real estate, and may
convey, devise, mortgage, or otherwise encumber the same. In like
manner and with the same effect as citizens of this State. Allens
whether resident or not. may own real estate not exceeding 320 acres
lands In excess or that amount they must convey within five years oi
suffer escheat as to such excess.
Arrest for Debt. Defendant In a civil action may be arrested and
held to ball In the amount claimed, at any time before Judgment on
affidavit that he Is about to leave the State, taking with him property
subject to execution, with intent to delay or defraud the plaintiff
Bond Is required of plaintiff.
Assignments and Insolvency. Any debtor may make a general
assignment of all property In trust for benefit of all bona fide creditors
This trust Is administered under the direction of the county court
Dividends are allowed on all claims allowed by the trustee or court.
Debtor Is not discharged from hls liabilities.
Attachment may Issue against the property of a non-resident or
foreign corporation, and against any who may have disposed of, or be
about to dispose of, property, to cheat, hinder or delay creditors, or
against a creditor who conceals himself so that summons caD 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 house
holder, not exceeding one month at any one time, are exempt so long a,
debtor remains In such employment. It Is a misdemeanor to send
olalms out of the State to he collected by attachment, or garnishment,
when creditor, debtor, and person owing for earnings Intended to
he reached are all within the Jurisdiction of the court of this State.
The collection of claims so sent may be enjoined.
Banks. Private. Act of H07 (In effect Deo. 1, 1*07), regulating
private banking applies to any one who may use the word ’’bank”
In hls business. Capital must be at least $10,000, not mors than onethird of which may be Invested In the bank building. All real estate
must he held In name of hank. Bank cannot Invest In real estate
except In realizing on doubtful claim. Statement must be filed with
state auditor showing copy of articles of partnership acknowledged
(one of the partners to he resident of the state); location, amount
of capital, net worth of partners to he double capita) paid In. names
of officers List of officers must be posted In bank. Two reports of
resources aod liabilities are called for each year by auditor and pub
lished In local newspaper. Examination of hank made nt least
annually by auditor Statement of property held In trust by bank
must be filed In county recorder’s office. Depositors have lien on
assets. Jurisdiction over all persons Interested Is obtained hy
process served on officer in charge. Banks can not commence business
until chartered by State Charter Board. Banks cannot establish
branches without first having obtained a charter from the State Charter
board.
Banks, Savings. 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.
Banks, State. Regulated by a general banking law. The auditor
of the state appoints a state bank examiner who shall not be a
director or other officer of the bank, and shall have power to make
a thorough examination Into all the affairs of the bank, and. In doing
so, to examine any of the officers and agents thereof on osth. The
examiner reports in detail the condition of the bank from time to
time. The state hanks 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 he published In a newspaper where the bank Is estab
lished, or. If there Is no newspaper In the place, then In one pub
lished nearest thereto In the same county or an adjoining county.
The auditor may require special reports from any bank, whenever
In hls ludgment. 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. AU banks are empowered to execute trusts and act as
trustees.
On September 30, 1920 all duties, power and authority formerly
vested in the auditor of State as to banks of all kinds building and
loan associations, mort age guarantee companies, rural loan and saving
associations, will be lodged in a Banking commissioner appointed by
the Governor and said Commissioner will be at the head of the Depart
ment of Banking a separate branch of the State Government. All
laws relating to above named companies remain in full force and effect.
Bills of Exchange and Promissory Notes. No grace Is allowed.
Damages for protest on bills upon any person at any place out of
this State, but within the United States. 5 per cent on bills drawn
upon
person at any place without the United States. 10 percent.
(See Negotiable instruments.)
Chattel Mortgages. Chattel mortgage on personal property left
in the hands of the mortgagor with power to sell must stipulate that
the money received by the sale be applied to the payment of the
mortgage debt, and should be drawn in the form of an absolute bill
ol sale, must be acknowledged In the same manner as prescribed for
the acknowledgment of deeds, and recorded within ten daye 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 wlihln 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 of money
on mortgage of household goods, see the statutes.
Conveyances. 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 (aee Aliena), 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 bis attorney in faot.
The Joint deed of a husband and wife Is sufficient to pass the lands
of the wife. Except In cases of mortgages, conveyances In trust,
conveyances to husband and wife, and cases of estates vested In
executors or trustees, as such, and so held by them In Joint tenancy,
all conveyances and devises of lands, or of any interest therein, made
to two or more persons, shall be construed to create estates In 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 It was Intended to create an estate In Joint tenanoy.
A deed of release or quit-claim shall pass all the estate which the
grantor could convey by a deed of bargain and sale. If It be the
intention of the grantor to convey any lesser estate It must be so
expressed In the deed. Liability on lineal and collateral warranties
Is expressly abolished; a covenant or agreement of any person leaves
hvlrs 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 G. D. (here describe the premises)
ter 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, hls heirs and assigns, with covenant from the
grantor for himself and hls heirs and personal representatives that
ae is lawrully seized of the premises, has good right to convey the
J*me? and guarantees the quiet possession thereof, that the same are
tree from all Incumbrances, and that he will warrant and defend the
° “T? against all lawful claims: and shall. In the other
Auo u a k°od and sufficient conveyance In quit-claim
’ heirs and assigns. Any mortgage of lands worded
^arrants to C. D. (here describe the premises)
i«
^payment of (here recite the sum for which the mortgage
?ote or °lher evidences of debt, or a description
.nri
gia.ui.ee. ms ueirs, assigns, executors
^,arranty,rora the grantor and hls legal
representatives of title perfect and unincumbered In the grantor.
to mlii C^d|nPtAm£d'\^°hCOnVeX absolutely any estate In lands, but
Is made, or Intended to be made, defeasible by force of a deed of
defeasance, bond or other instrument for that purpose the original
conveyance strnll not thereby be defeated or affected ss against any
person other than the maker of the defeasance, or hls heirs or devisees,
or persons having actual notice thereof, unless the Instrument of
defeasance shall have been recorded, according to law, within ninety
days after the date of said deed. Every conveyance or mortgage of
lands, or of any Interest therein, and every lease for more than three
years, shall be deemed fraudulent and void as against any subsequent
purchaser, lessee or mortgagee In good Talth and for a valuable con
sideration, unless recorded in the recorder's office of the county where
such lands are situated
(Bee Acknowledgments. Married Women.)
When either the husband or wife is of unsound mind the partv
with the sound mind can either join in the guardian’s deed or make
his separate deed and the effect would be the same as a joint deed of
husband and wife both of whom are of sound mind.
Corporations. Domestic Corporations. Corporations are created
only under general statutes. This Is done by means of articles ot
association, filed with the secretary ot state, and the recorder or clerk
BANKING AND COMMERCIAL LAWS—INDIANA
1769
deposition when they occur. A narrative form may be used. A
of the county, as provided by statute. The liability of stockholders
witness identifying a written instrument should attach it to his
varies according to the nature of the corporation In question aud the
deposition, making it a part of his answer.
law under which It was organized. In the corporations which were
In existence November 1, 1851, and which accepted the terms of the
Descent. The real and personal property of any Intestate shall
act of March 6, 1883, stockholders are liable. In case of Insolvency,
descend to his or her children equally: and posthumous children
for a sum at least equal to amount of stock held at time the debt
Inherit equally with those born before the death of the ancestor.
was contracted. In most corporations, stockholders who have paid
Children ot deceased children take the share which would have
for their stock are not Hable tor debts of the company. However,
descended to the father or mother- and grandchildren, and more
there Is liability In some cases for labor and services of employes.
remote descendants, and other relatives, lineal and collateral, Inherit
Shares of capital stock In a private corporation are subject to attach
by the same rule, excepting that If the heirs are all grandchildren
ment. Annual reports must be filed in June with the Secretary of
they Inherit equally Where there are no heirs as aforesaid, oneState.
half of the estate goes to tne father ana mother as joint tenants, or
to the survivor, and the other half to the brothers and sisters, and
Foreign Corporations. Agents of foreign corporations, before
to the descendants of such as are dead, as tenants In common. If
entering upon the duties of their agency In this State, shall deposit
there be neither father nor mother, the brothers and sisters, and
In the clerk’s office of the county, where they propose doing business,
the other descendants, take the estate as tenants In common; or,
the power of attorney, or appointment, under which they act. They
per contra, the father and mother as Joint tenants of the survivor.
shall also file a duly authenticated order, resolution or other sufficient
Kindred of the half-blood Inherit equally with those of the wholeauthority of the board of directors authorizing citizens or residents
blood In property purchased by the ancestor; otherwise, as to property
of this State having a demand against such corporation arising out
acquired by gift, devise, or descent. Illegitimate children Inherit
of any transaction In this State with such agents to maintain an
from the mother same as If they were legitimate, and vice versa.
action In respect to the same In any court of this State of competent
Tenancy bv the curtesy aud dower are abolished, and widows take
Jurisdiction, and authorizing service of process on such agent, and
one-thbd of the real estate In fee simple, unless tne property Is worth
that such service shall authorize Judgment and all other proceedings
over $10,000. In which case, as against creditors, she takes one-fourth
against such corporation. By act of 1913, foreign corporations
only, and where the real estate Is worth over 520.000, one-fifth only
must file with auditor of State certified copy of vote of directors
as against creditors, but as against other heirs she takes one-third
consenting to accept service of summons on auditor of State as sum
In fee simple, regardless of value, except where there Is but one
mons on corporation. If foreign corporation has no agent within
State, summons may be served on Auditor of State, who shall notify
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
corporation. Contracts made by such agents shall not be enforced
in any court of this State until there has been a compliance with
be a child or children by a previous marriage, and none by such
wldow% Other special provisions of the statute are too extensive to
the above provisions. Failure of a foreign corporation to comply
with these provisions will not bar—but will abate such action. Any
set out. The estate of a person dying Intestate without kindred
person who shall, directly or indirectly, receive or transmit money
capable of Inheriting will escheat to the State for the support of the
or property to or for such corporation, or make any contract, or
common schools.
transact any business for or on account of any such corporation,
Dower. (See Married Women.)
shall be deemed agent. This provision does not apply, however,
Executions may Issue at any time within ten years after Judg
to persons acting as agents for a special or temporary purpose or for
ment and are returnable In 180 days. From a court of record may
purposes not within the ordinary business, nor does It apply to
to any county In the State. Are a lien on personal property
attorneys at law. Any person acting as agent of a foreign corpora i Issue
within the county from the time they are placed In hands of officer.
tion, who shall neglect or refuse to comply with the foregoing pro
The
Hens
upon personal property attach In the order In which the
visions, is liable to a fine In any sum not less than 550. In 1879 It
officer receives them. When levy Is upon real estate the dates of
was enacted that: Every foreign corporation now doing or trans
the Judgment control the right to participate in the proceeds, and
acting. or that shall hereafter do or transact, any business In this
they must be applied according to their priority. Personal property
State, or acquire any right, title or Interest In or Hen upon real estate
taken In execution may be left with execution defendant by the
In this State, that shall transfer or cause to be transferred from any
giving
to the officer of a delivery bond with sufficient surety: debtor
court of this State to any court of the United States, save by regular
may, by giving sufficient freehold sureties, have a stay of execution
course of appeal after trial In the State courts, any action commenced
on any sum exceeding $100, for six months. Where the sum Is less
by or against such corporation In any court of this State by or against
than $100, the stay Is not so long, varying with amount of Judgment.
any citizen or resident thereof: or that shall commence In any court
Lands sold under execution may be redeemed within one year by
of the United States In this State, on any contract made in this
the owner, mortgagee or person having a Hen thereon, the owner
State, or liability accrued therein, any suit or action against any
retaining possession during the redemption yea> and being liable for
citizen or resident of the State of Indiana, shall thereby forfeit all
reasonable rents and profits In case of failure to redeem.
right and authority to do or transact business In this State, or hold
Exemptions. Property up to $600 is exempt in suits on contract
real property or liens thereon, and all contracts between such cor
where debtor is a resident householder. Resident householder is
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
entitled to exemption as well when in transit with his family and
property as when permanently settled. The debtor must file a sched
porations, but enforceable by such citizen at his election. The pro
visions of the foregoing section are made conditions upon which
ule of all of his property, and select the property claimed, which is
such corporations may be authorized to do business, or hold titles to,
then appraised. Contract waiving exemption is void. Pension
money in transit to pensioner is exempt, but when received by him
or liens on, real estate In this State. By the act of 1901, foreign
and invested in other property is no more so than any other property
corporations are required to designate an agent In this State upon
One month's wages also exempt if the debtor is still employed.
whom legal process may be served: to have an office where proper
books of account may be kept. By act of 1907 foreign corporations
Fraud. Assignments, In writing or otherwise, of any property
desiring admission to state must make verlned statement to Secre
made or suffered with intent to hinder, or defraud are void as to the
tary of State showing: articles of Incorporation, business Intended
persons defrauded. The question of fraudulent Intent Is a question
to pursue, capital stock, proportion of Its business carried on in this
of fact.
State, amount paid In on capital stock, and answers to other Inter
Frauds—Statute of. The following contracts. If enforclble In court,
rogatories propounded by the Secretary of State, and shall pay a
must be In writing and signed by the party to be charged: 1. To
fee of 525 on first 510.000 of assets used In Indiana, $10.00 for each
charge an executor or administrator, upon any special promise, to
additional $10,000. Annual report must be filed in January and fee
xnswer damages out of his own estate. 2. To charge any person,
of $1 paid. Foreign corporations may not hold real estate except
upon any special promise, to answer for the debt, default, or mlssuch as may be necessary for proper carrying on of its legitimate
oarrlage of another. 3. To charge any person, upon any agreement
business.
or promise, made In consideration of marriage. 4. Upon any con
Courts. Terms and Jurisdiction. The circuit court Is the only
tract tor the sale of land (except loan not exceeding the term of three
court of original general civil Jurisdiction In the State. It has full
years). 5. Upon any agreement not to be performed within one
year from the making thereof. 6. Sale of goods exceeding $50 In
probate powers, except In Marlon County, where there Is a separate
value, unless part payment or part delivery be made. 7. Upon
probate court Superior courts have been established In many
any representation made concerning the character, conduct, credit,
counties Justice's Jurisdiction. $200. Party may confess Judgment
ability, trade or dealings of any other person.
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
Garnishment. (See Attachment.) Garnishment Is a remedy In
process to constable of any county In the State where party resides.
aid of attachment. Upon any personal action arising out of contract
The supreme court has no original Jurisdiction. It sits at Indianapolis.
any person may be summoned as a garnishee defendant upon an
The appellate court has final Jurisdiction In many cases.
affidavit that official has good reason to believe that any person
named has property of the defendant in his possession or under his
Days of Grace are no longer recognized.
control, or that he Is Indebted to the defendant, or has control or
Depositions. Depositions may be taken anywhere In the United
agency
of money, property, credits, or effects, that he has any share
States without a commission, before any Judge. Justice of the peace
or Interest In the stock of any association or corporation, and all
notary public, mayor, or recorder of a city, clerk of a court of record,
money
or
property In the hands of the garnishee defendant Is bound
or commissioner appointed by the court to take depositions. Per
from the time the summons Is served upon him. Resident house
son taking deposition must not be of kin to either party or Interested
holders are entitled to an exemption of $600 In garnishment pro
In the action. When taken outside of the United States they shall
ceedings, as In all other cases. Wages of non-residents, to the amount
be taken pursuant to an order of the court, under a commission, with
of $25, and of resident householders to the extent of one month’s
such reasonable notice of the time and place of taking the same as
wages, are exempt from execution so long as the defendant remains
the court shall require, and they shall be certified and returned by
In the employ of the garnishee. Indiana claims can not legally be
the commissioner In such manner as the court shall direct. Notice
•ent or taken out of the State for prosecution, and suits Instituted
of the taking of the deposition should be served upon the adverse
elsewhere In violation of this prohibition may be enjoined and the
party or his attorney, specifying the cause, the court or tribunal of
offender be criminally prosecuted.
trial, the time and place of taking, and the names of the witnesses.
Holidays. (See Legal Holidays.)
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
Husband and Wife. (See Married Women.)
ing the dav of service, of the taking and intervening Sundays. The de
Inheritance Tax. (See Taxes.)
ponent shall be first sworn according to law. He shall then be examined
Interest. The legal rate Is 6 per cent, but Interest may be taken
by the party producing him, and then by the adverse party, and then by
In advance. No agreement to pay a higher rate Is valid unless the
the officer, if he see cause. The deposition shall be written down by the
same be In writing, and In such case It Is not lawful to contract for
officer, by the deponent, or by some disinterested person, in the presence
and under the direction of the officer, and after the same has been
more than 8 per cent. When a greater rate Is contracted for, the
oontract Is void as to all Interest In excess of 6 per cent. Is usurious
carefully read shall be subscribed by deponent. The following facts
and Illegal, and the excess may be reoouped by the debtor whenever
shall be stated in a certificate to be annexed by the officer: 1. That
It has been reserved or paid before the bringing of the suit. Interest
the deponent was sworn according to law. 2. By whom the depo
on Judgments runs from the date of the verdict or finding, at the
sition was written, and If written by deponent or some disinterested
rate specified In the original oontract, not exceeding 6 per cent, and
person, that it was written in the presence and under the direction of
If no contract has been made 6 per cent Is allowed.
the officer. 3. Whether the adverse party attended. 4. The time
and place of taking, and the officer shall sign and attest the certificate,
Judgments of courts of record are a Hen upon all real estate of
and seal the same, if he have a seal of office. If he have no seal, his
defendant within the county for ten years. Judgment may be
certificate shall be authenticated by the certificate and seal of the
obtained at the first term of the court, after process has been served
clerk or prothonotary of any court of record of the county in which
on debtor ten days prior to the first day thereof. Judgment In justice
certificate shall be authenticated by the certificate and seal of the
court becomes a lien on real estate of Judgment defendant from time
clerk or prothonotary of any court of record of the county in which
of
filing a transcript In office of the clerk of circuit court. A certified
the officer exercises the duties of his office. The officer taking the
copy of any Judgment rendered by the circuit court of the United
deposition shall seal the same in a sufficient envelope and himself,
States for district of Indiana may be filed with the county clerk.
post, or express, or deliver the same to the clerk, of the court in which
Legal Holidays as to commercial paper are as follows: The first
the action is pending, endorsing on the envelope the names of the
day of the week, commonly called Sunday: the 1st day of January;
parties and of the court and of the witnesses whose depositions are
the 4th day of July: the 25th day of December; any day appointed
enclosed. Adjournments may be had from day to day after the
by the president or governor for public fasting or thanksgiving; 12th
deposition has been begun, and for longer periods, upon written con
day of February; 22d day of February; 30th day of May; first Monsent of the parties, which written consent must be attached to the
deposition. Adjournments should be noted at the place in the I day of September; 12th day of October; and any election day; when
770
BANKING AND COMMERCIAL LAWS—IOWA
any holiday (other than Sunday) comes on Sunday the Monday next
succeeding shall be the legal holiday; Saturday afternoon is a legal
half-holiday in the city of Indianapolis and may be made so by act
of bankers in other cities of over 35,000 population.
Liens. 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 Dersons 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 removing any house, mill, manufactory
or other building, bridge, reservoir, system of water-works, or other
structure, known as a mechanic’s lien; also to bailees and tradesmen
for their valid and reasonable charges in the construction, repair,
or alteration of any article of value; also to the bailee or keeper of
personal property for any feed or care bestowed by him upon such
property; special lien for storage or repair of motor vehicles; also to
forwarding and commission merchants on goods which may have
remained in store for one year or more; also to all persons, firms
and corporations engaged in the business of storing, warehousing and
forwarding, goods remaining in possession of such person, firm or
corporation for more than six months may be sold at public auction
to pay amount of lien. Persons storing, furnishing supplies or repair
ing a motor vehicle or garage owners have lien on motor vehicle
which can be foreclosed within one year from failure of owner to pay
charges. Judgments rendered in any county in the State are a lien
upon the real estate situated ip such county for a period of ten years
from the rendition thereof, and judgments rendered in the federal
courts are a lien upon any real estate in the State for the same period.
Provision is made by statute, however, for the filing in the county
where the real estate is situated of a transcript of any judgment
rendered in the United States courts. The office of the clerk of the
circuit court in each county contains a public record known as the lis
record, in which notice of the filing of complaints to enforce
Bendens
ens aro required to be recorded, and also in cases where real estate is
seized by attachment or execution. Unless so recorded the bringing
suits does not operate as a constructive notice.
Limitations to Suits. Actions for Injury to person and character,
and for statutory penalty or forfeiture, two years; against public
officers relating to their official duties, and on public Improvement
assessments, five years: open accounts and contracts not In writing,
for use, rents and profits of real estate, Injuries to and detention of
property, recovery of personal property and relief against frauds, six
years; upon promissory notes, bills of exchange and other written
contracts for payment of money, ten years; actions not limited by
statute, fifteen years; other written contracts, judgments of courts of
record and real actions, twenty years. Revivor: part payment or
new promise in writing. Except in favor of sureties, the statute of
limitation does not run against the State.
Married Women control their real and personal property.
The
husband Is liable for the wife’s debts contracted before marriage to
the extent of the personal property he may receive from her, and no
further, and her lands are liable for such Indebtedness. A married
woman may devise her separate estate; may sell and transfer her separ
ate personal property: carry on any business, labor, or service, and
receive the earnings accruing therefrom; enter into any contract in
regard to her separate personal estate business, labor, or service, and
her separate estate, real and personal, be liable therefor, the same as a
femme sole; and her husband is not liable for such debts, nor for
Indebtedness created by the wife for Improvement of her separate
real estate. She can make leases of real estate for terms of three
years or less, and execute mortgages to secure purchase money, 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. Disability as to surety
ship has been abolished therefore in making loans to married women
it is not necessary for her to make an affidavit that the money used
is for her own benefit. She is entitled to hold as exempt from execu
tion m any suit on contract property to the amount of $600. A widow
takes one-third of her deceased husband’s real estate in fee, and free
from all demands of creditors, where the estate does not exceed $10,000:
one-fourth, il under $20,000, and one-llfth, 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 one-third of the whole of personalty
after payment of debts, and in all cases takes $500 without accounting
and may occupy the dwelling of forty acres of her husband’s land for
a year, rent free. But the one-third of her real estate which the
widow takes in fee, can not, upon her marrying again, be effectively
conveyed or mortgaged by her, if there be a child or children or their
descendants, alive by the previous marriage. Real estate which
husband and wife hold by title made to them as husband and wife
is held as an estate by entirety; it can not be taken for the debt of
either; is not subject to the lien of a judgment against either, except
in case of the death of either or upon divorce granted, when the estate
is destroyed and becomes subject to levy and sale; and a mortgage
thereof by them both for a debt of the husband has no legal validity
Mortgages. (See Conveyances.)
Negotiable Instruments are defined by Chapter 63 of the Acts
of 1913. Section 1 provides that an instrument to be negotiable must
conform to the following requirements:
1. It must be in writing and signed by the maker or drawer.
2. Must contain an unconditional promise or order to pay cer
tain sum in money.
3 Must be payable on demand, or at a fixed or determinable
future time.
4.5. Where
Must be payable to order or to bearer.
the instrument is addressed to a drawee, he must be
named or otherwise indicated therein with reasonable certainty.
its negotiability is not affected by a provision which authorize?
the sale of collateral securities in case the instrument is not paid at
maturity, or authorizes a confession of judgment if the instrument
be not paid at maturity, or waives the benefit of any law intended for
the advantage of the obligor, or gives the holder an election to require
something to be done in lieu of the payment of money.
To charge indorser notice of 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 of 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.
Power of Attorney 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.
a
Probate Law. (See Administration of Estates.)
Protest. The statutory damages on such protest are 5 per cent
on the principal of a bill of exchange. If drawn or negotiated within
this State, upon any person, at any place out of this State, but within
the United States, and It) per cent if upon any person, at any place
without the United States.
Replevin. When any personal property is wrongfully taken or
unlawfully detained, or, if taken on execution or attachment, is
claimed by a third party, the owner or claimant may bring an action
for possession thereof. He may claim Immediate delivery upon
affidavit therefor, whereupon the sheriff takes possession of the
property, and if a delivery bond is given on behalf of the defendant
within twenty-four hours, the property is returned to him, otherwise
the plaintiff may give bond and take the property; falling 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 of property pending suit.
Suits. (See Actions.)
Taxes. 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 of November provided
that all war taxes charged shall be included in the first installment.
Sales of real estate for taxes are held on the second Monday of Feb
ruary, and all lands on which taxes are delinquent for two years are
offered. Owner has two years in which to redeem, bv paying the
amount set forth in the certificate of purchase, with all subsequent
texas 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 of the
beneficiaries to the decedent, is levied upon all intangible or tangible
proper of resident decedent, and upon tangible proper of non-resident
decedent. Tax applies as well to gifts made in anticipation of death,
to take effect at that time. Inheritance taxes do not apply to the
transfer of the estate of any decedent leaving an estate of less than
$25,000, dying or who has died while in the military or naval forces
of the United States during the World War or within one year after
the termination of the war. (Revision of the tax laws made by 1919
Legislature and for further information reference should be made to
the Acts 1919.)
Wills. Nuncupative wills, where property of more than the value
of $100 is bequeathed, are not valid, except as to the personal property
and wages of soldiers and sailors in actual service. A nuncupative
will must be reduced to writing within fifteen days after it shall have
been declared and proved by two competent witnesses who shall have
heard the testator request some of those present to bear witness
thereto. No will in writing is valid unless signed in the presence of
two or more witnesses by the testator, or by some one for him In his
| presence, with his consent, and attested and subscribed by two or
, more witnesses at his request, and in his presence and that of each
' other. Will made before marriage becomes void on marriage.
SYNOPSIS OF
THE LAWS OF IOWA
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by B. J.
Cavanaoh.
Attorney at Law, Des Moinee.
(See Card la Attorneys' List.)
Accounts and Claims of. Statements of account, for use In
oourt or for proof in the settlement of estates ot deceased and In
guardianship matters, must be itemized and verified. A statement
of “balance,” or “goods," or "merchandise” is not sufficient.
Acknowledgments. All Instruments affecting real estate. 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.
Actions. The common law forms of pleading are not used,
although the common law forms the basis of procedure. Pleading,
practice, and procedure are statutory, and accord. In the main,
with, what la known as the reformed, or code procedure.
Administration of Estates. Where an executor Is not appointed
by will, adm nstr- tion shall be granted: 1. To the spouse of the
deoeased. 2. To the next of kin. 3. To creditors.
To any other
person whom the court may select. Claims against the estate of a
deceased person are payable in the following order: 1. Debts entitled
to a preference under the laws of the United States. 2. Public
rates and taxes. 3. Claims filed within six months after the first
publication of the notice given by the executors or administrators
of their appointment.
Ail 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 of appointment are
barred, except as to actions against decedent pending In the district
or supreme court at the time of his death, or unless peculiar circum
stances entitle the claimant to equitable relief.
Affidavits. Affidavits may be taken before any person authorized
to administer oaths in the state where taken. If taken without the
State of Iowa, the official character of the officer administering the
oath should be evidenced in the same way as the official character ot
an officer taking depositions. (See Depositions.) Affidavits may be
taken within the State for any lawful purpose, of one unwilling to
voluntarily make an affldavlt.by filing a petition with an officer author
ized to administer oaths, who may cause the person to come before
him and make affidavit. This proceeding is statutary and must con
form strictly to the statutes of Iowa.
Affidavits for proving accounts and form: State of......................
County of.................. ss, I...................being first duly sworn, on oath
depose and say that I am (a member of the firm of..................and
that said firm is) the owner of the account hereto attached marked
exhibit A, and made a part hereof, that the same is correct in all
particulars and that the articles named therein were sold and delivered
to said.................. at the prices and times therein named and agreed
I upon, and that said articles were reasonably of the value charged.
4.
4.
BANKING AND COMMERCIAL LAWS—IOWA
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 except as herein stated.
Subscribed and sworn to before me. by the said.................. this....
day, etc.
Aliens. Non-resident aliens or corporations Incorporated under
the laws of any foreign country or corporations organized In this
country, one-half of the stock of which Is owned or controlled by 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 years,
and If not sold within that time, escheats to the State. Allens may
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 yean
after title Is perfected In an alien, otherwise It will escheat to the
State.
Arrest. No person can be Imprisoned for debt on either mesne
or final process, unless In case of fraud. Debtors, however, may be
ordered to appear before a court of record wherein a judgment has
been rendered, and If the debtor Is about to leave the State, or conceal
himself, he may be arrested and compelled to give bond to appear
before the court for examination, and In the meantime, not dispose
of his property. (See Supplementary Proceedings.)
Assignments and Insolvency. General assignments not valid
unless for benefit of all creditors, when assent of creditors Is presumed.
The debtor must annex to the Instrument of assignment a sworn
Inventory and list of creditors; and such Instrument must be 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 maii to file claims within three months.
All claims not filed within three months after notice published or
within such extended time as the court grants, not exceeding nine
months including claims not yet due. can not be paid until all claims
filed within said time are paid. An assignment does not discharge
the debtor from his debts and liabilities, but only entitles creditors
to share equally in his estate. All claims filed must be Itemized
and sworn to.
Attachments. 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 specific
personal property. In a few prescribed cases.
Banks. 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 of from $25,000 to
$50,000. according to the population of the city or town In which
each Is located. Each share must be of the par value of $100. 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 by Act of Congress. Any Iowa State or
Savings Bank or Trust Company may become a member of the
Federal Reserve bank system.
Bills of Exchange. The negotiable Instrument law recommended
by the Interstate commission on uniformity of law has been enacted
and Is now law in Iowa. (For Grace, See Days of Grace.) A provision
for the payment of exchange, In addition to the amount of principal
and Interest, does not render a bill of exchange non-negotlable.
Bills of Lading. The uniform Bill of Lading law has been adopted
in Iowa.
Chattel Mortgages. No sale or mortgage of 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 of real estate, and filed for record with the recorder
of deeds of the county where tbe holder of the property resides.
No encumbrance of personal property which may be exempt from
execution by the head of a family if a resident of the State shall be
of any validity unless the same be by written instrument and unless
the husband and wife concur in and sign the same joint instrument.
Collateral Securities. 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.
Conditional Sales. No sale, contract, or lease wherein the
transfer of title or ownership of personal property Is made to depend
upon any condition, shall be valid against any creditor or purchaser
of the vendee or lessee In actual possession, obtained In pursuance
thereof, without notice, unless the same be in writing, executed
by the vendor or lessor, acknowledged and recorded the same as
chattel mortgages.
Conveyances. No particular form Is necessary for conveyances
or mortgages The name of the parties, the description of the property,
the consideration, the date, signature, and acknowledgment. Is all
that is necessary: as between the parties they are valid without
being recorded. The wife must Join with her husband in conveyances,
and a conveyance of the homestead Is of no validity unless husband
and wife concur in and sign the same Joint Instrument. A corporation
executes conveyances under Its corporate seal, except where the
corporation has not adopted a seal. Such conveyances must be signed
la the name of the corporation by the officers authorized so to do,
by the Articles of Incorporation, or By-Laws, or by resolution duly
entered of record in the minutes of the corporation, and duly acknowl
edged by such officers, as the act of the corporation.
Corporations. Private corporations, sole or aggregate, may be
formed for any lawful purpose. But there are special statutory
provisions which must be compiled with for the organization and
government of Insurance, banking, loan and trust, building and loan,
and railway corporations. In all cases, the articles of Incorporation
must be acknowledged and recorded. In the manner provided by
law, and approved by the secretary of state. With a few exceptions,
an Incorporation fee of $25, plus $10 for each thousand dollars of
capital In excess of $10,000 must be paid, upoa the organization
or renewal of a private corporation. The general term of the life
•f a private corporation Is twenty years, renewable for a like term.
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1771
Railroads, savings banks, and a few others may last fifty years,
also renewable.
Foreign Corporations are required to pay a similar incorporation
fee before doing business In the State, based, however, upon the
property of the corporation, within the State of Iowa. Foreign public
service corporations, other than steam railroads, doing business in
Iowa, and holding companies controlling the stock of such companies,
are made subject to many of the laws of 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
Jurisdiction. Superior courts may be established by the vote of
the people In any city of 5,000 Inhabitants. It has Jurisdiction to
try all violations of city ordinances, and the same criminal jurisdiction
as Justice of the peace courts. It has jurisdiction to try and determine
civil and orlminal 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
equity, 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 of parties, $300.
The supreme court has only appellate jurisdiction and holds sessions
at Des Moines, January to May. from May to September (leas vaca
tion), and from September to December.
Days of Grace. Every negotiable Instrument Is payable at the
time fixed therein without grace.
Depositions may be taken within the State, on notice, and within
or without the State, on commission. Issued after notice by the clerk
of the proper court. When to be taken on commission, defendant
may elect. In writing, duly served, to cross examine orally; thereupon
plaintiff may also elect In writing to examine orally. Exceptions
must be filed within three (3) days, after the filing of the deposition,
but objections may neverless be made on the trial for competency,
materiality, and relevanoy.
Descent and Distribution of Property. Subject to rights of
dower and other charges thereon, and burdens Imposed during the
lifetime of the decedent, and In the absence of a valid will, the estate
of one deceased shall descend In equal shares to bis 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 of the estate to the extent of $7,500 after payment of debts
and administration expense, and one half of the estate in excess of
said $7,500 goes to the surviving spouse and the other half to the
parents. If no surviving spouse, the whole thereof shall go to his
parents or tbe survivor of 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 by 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 of the head of a family for 90
days past, and numerous Items of personal property are exempt by
statute. There are statutory provisions concerning the creation of
liens on exempt real or personal property, and the assignment of
exempt wages. As to alimony there is no exemption unless the
party in whose favor rendered remarries.
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.
Garnishments. (See Attachments.)
Husband and Wife. (See Married Women.)
Holidays. The first day of the week, January 1, February 12,
February 22, May 30, July 4, the first Monday in September, Decem
ber 25. the day of general election and any day appointed or recom
mended by the governor of this State or the President of the United
States as a day of fasting or thanksgiving are holidays, for all purposes
relating to the presentation for payment or acceptance, and for the pro
testing and giving notice of the dishonor of bills of exchange, drafts,
bank checks, orders and promissory notes.
Interest. By written contract, maximum legal rate, 8 percent.
Judgments draw 6 per cent, or such rate as is fixed by the contract
on which the Judgment or decree Is rendered, not exceeding 8 per
cent per annum.
Open accounts draw 6 per cent after six
months from date of last Item; money loaned, money due, money
due on settlement of accounts, bear Interest at 6 per cent per annum.
Contract for more than 8 per cent forfeits all Interest and costs.
Judgments In the district and superior courts may be obtained
at first term after suit commenced. If undefended; an equitable
action, except one for foreclosure of mortgage, or mechanic's lien
or for divorce, Is triable at the second term after the case Is at Issue.
Judgments of the district court are Hens on real estate owned by
the debtor at the time of rendition. If the lands lie In any other
oounty. 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 tbe 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 oounties In the same manner as It rendered
In the district court.
1772
BANKING AND COMMERCIAL LAWS—KANSAS
Liens. These are mainly created by statute and are enforceable
In equity. In a tew cases, and under peculiar circumstances, equitable
liens on real estate are established and enforced In equity.
Limitations. Actions, according to their subject matter, have
various periods of limitation, fixed by statute, extending from three
months to ten years after the cause of action accrued. Actions upon
Judgments rendered In courts of record have a limitation of twenty
ears. Dower rights and mortgages existing or created prior to
anuary 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.
Married Women may own In their own right, real and personal
property, and may manage, sell, convey, and devise the same by
will. Neither husband nor wife Is liable for the debts or liabilities
of the other Incurred before or after marriage, nor are the wages,
earnings, or property of either, liable for the separate debts of the
other. Contracts may be made by a wife, liabilities Incurred, and
enforced by or against her, as If unmarried. Both husband and
wife are Hable for the expenses of the family, and the education
of the children.
Moratorium. Soldiers and sailors and other persons in the mili
tary or naval service of the government or who may hereafter enter
such service during the present war are exempted while in such service
and for a period of six months after the termination of the war or of
said service or death, from payment of any bill of exchange or of any
negotiable instrument, or of any other payment in pursuance of any
contract or from any writ of 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 of such service or death.
The statute of limitations against such persons is tolled for the same
period.
Mortgages must be subscribed and acknowledged by the parties
creating the lien and recorded same as deeds are foreclosed by equitable
action. The wife should Join in the instrument, except mortgages
for purchase money, and mortgages upon non-exempt personal
property. The mortgagor has one year In which to redeem real
estate after execution sale, except cs 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.)
Non-residents. 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. Non-residents
may not sell at auction unless reciprocal legislation exists in the state
of their residence.
Notaries. 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.
Partnerships, Limited and 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.
Powers of Attorney. A power of attorney to convey, or In any
manner affect real estate, must be acknowledged and recorded. A
revocation of such power must be acknowledged and recorded In the
same office wherein the original power of attorney Is recorded.
Receivers. In distributing property In the hands of a receiver
there shall be paid In the following order: 1. Taxes or debts due
the United States; 2. Taxes or debts due the State. 3. Debts owing
to employes for labor, not exceeding $100.
Records. All Instruments conveying or creating liens upon the
real or personal property, all conditional sales and articles of adoption
of a minor child, must, after having been 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.
Redemption. Redemption from a sheriff's sale of real estate,
whether sold under a general or special execution, may be made
by a creditor who has a Hen on the property sold, at time after six
months from date of sale by paying to the clerk of the oourt the
amount provided by statute, being, generally, the amount of the
urchaser's bid, with Interest at the same rate that the Judgment
ears. 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.
Replevin. In aotlons for the recovery of personal property, the
petition must be verified: and If plaintiff desires Immediate delivery
ot 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. This State has a uniform sales law.
Sales of Goods in Bulk. Sales. Including exchange and assign
ments, of the whole or major part of a stock of 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 of 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 of price to seller and
the latter must furnish under oath a list of his creditors and the amount
due each.
Security for Costs. Non-resident plaintiffs may, on motion of
defendant, be required to file a bond -with sureties to be approved for
security of costs either in justice court or district court.
Statute of Frauds. No 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 of personal
property, when no part of the property is delivered and no part of
the price is paid. 2. In consideration of marriage. 3. .Vherein
one promises to answer for the debt, default or miscarriage of another.
including promises by executors to pay the debt of decedent from their
own estate. 4. For the creation or transfer of 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.
Stocks and Bonds. The sale of stocks and bonds is governed by
what Is termed a “Blue Sky Law."
Supplementary Proceedings. When an execution has been
returned unsatisfied, plaintiff may have an order for the appearance
and examination of 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 of the judgment. If any property be found
by such examination it may be levied upon; if in thd hands of others
the court may require its delivery to satisfy the judgment, and
appoint a receiver of debtors property, forbid the sale thereof and
order Equitable Interests in realty to be sold.
Taxes. Real estate Is assessed every odd year; personal property
Is assessed every year. All property Is assessed at its actual value,
and taxed at twenty-five (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 tue 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 tor taxes by distress
and sale. Real 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.
Trust Corn panics. 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.)
Trust Deeds. 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.
Warehouse Receipts. Any person, firm, or corporation desiring
to Issue elevator or warehouse certificates (or receipts must file a
written declaration with the recorder of deeds In the county where
his or Its elevator or warehouse Is situated, setting forth the 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 Isulng 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.
Wills. 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 to pay his debts
and expenses of administration. Wills, to be valid, must be written,
witnessed by two competent witnesses, signed by the testator, or
by some person In his presence and by his express direction 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 Id 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 hava
one. All wills must be probated before they can be effectual.
SYNOPSIS OF
THE LAWS OF KANSAS
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by Krauthoff, McClintock & Quant,
Attorneys at Law, Kansas City.
(See Card In Attorneys' List.)
Acknowledgments. (See Deeds.)
Actions. Civil actions are conducted as required by a code of
procedure. Security for costs must be given or resident plaintiffs
may deposit $15 in lieu of bond for costs. Non-resident plaintiffs
may be required to give bond for costs.
Administration of Estates. Probate courts In each county have
Jurisdiction of estates. Demands against the estate are divided Into
tho 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 tho
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
recedence. 5. All demands without regard to quality which shall
e legally exhibited against the estate In one year after granting
letters of administration. 6. All demands thus exhibited after tho
end of one year and within two years. Demands not exhibited within
►wo years are barre I. except as to Infants persons of unsound mind
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 sell real
estate In this State in accordance with the power contained In tho
will, unless administration upon the estate has been granted In this
State; provided that at the time of such conveyance an authenticated
copy of such will has been recorded in the office of the probate court
in the county in which the land is situated.
S
Affidavits. Affidavits may be made In or out of the State by the
same authority and with like authentication, as depositions.
Aliens. Law prohibiting aliens from Inheriting or kolding real
estate, repealed 1901. (See Foreign Corporations.)
Arbitrations. Persons having controversies may submit them to
the arbitration of any person or persons mutually agreed upon and
may make such submission a rule of any court of record in the State.
The parties may enter Into arbitration bonds conditioned for the
faithful performance of the award.
BANKING AND COMMERCIAL LAWS—KANSAS
Arrest. A defendant may be arrested In a civil action upon filing
an affidavit with the clerk of the court that he has removed or begun
to remove his property out of the Jurisdiction of the court with
Intent to defraud his creditors: or has begun to convert his property
Into cash, for the purpose of placing It beyond the reach of his creditors:
or has property which he fraudulently conceals; or fraudulently con
tracted the debt.
Assignments and Insolvency. Assignments must be for the
benefit of all creditors and only discharge the debtor to the amount
of payments made.
Attachment. At or after the commencement of an action an
attachment may be had by plaintiff. Tho affidavit of the plaintiff,
bis agent, or attorney must be filed, stating the nature of the claim,
that It Is just, the amount affiant believes ought to be recovered,
and the existence of some one or more of the following grounds: 1.
That defendant Is a foreign corporation or a non-resident of the State
(but In this case for no other claim than a demand arising upon 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 to avoid a service of summons.
4. That he so concealed himself that summons can not be served
upon him. 5. That he is about to remove his property or a part
thereof out of the jurisdiction of the court with the Intent to defraud
his creditors. 6. That he Is about to convert his property or a
part thereof Into money for the purpose of placing It beyond the
reaoh 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. A bond in double the amount of plaintiff's claim is
required except where by the attachment affidavit defendant is shown
to be a non-resident of the State.
Banks and Banking. 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 not less than five, nor more than thirteen, a majority of whom
shall be residents of the county or adjoining counties to that In
which the bank is located. The word “State” shall be included In the
title. The full amount of the capital stock must be subscribed before
the charter Is tiled. The bank shall transact no business, except t.he
election of officers, the taking and approving of their official bonus,
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 810,000. No bank shall employ Its money
directly or indirectly In trade or commerce by buying and selling
goods, chattels, wares, and merchandise, and shall 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 for
receiving deposits when the bank is in a failing condition. Private
banks are subject to the provisions of the law. The bank commissioner
or deputy, must make examination of each bank at least once a year.
Kour reports per annum are required, and the commissioner may call
for others. Banks may purchase, hold, and convey real estate under
certain conditions to the extent of one third of their capital and
surplus. Shareholders are additionally liable for a sum equal to the
par value of stock owned and no more.
Deposit Guaranty Fund. Any bank having an unimpaired 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 8500 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 <,f the same size
not more than five In any one year. If a bank fails, the bank commis
sioner takes charge and winds up Its affairs. He Issues to each
depositor a certificate bearing 6 per cent Interest. Any balance due
after assets are exhausted Is payable out of the guaranty fund
Deposits otherwise secured do not participate, nor a bank’s obligation
as Indorser upon bills re-dlscounted. 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.
Bills of Exchange. (See Notes and Bills of Exchange.)
Bill* of Lading. These are governed by the common law.
Bulk Sale. “The sale or disposal of any part or the whole of a
stock of merchandise or the fixtures pertaining thereto, otherwise
than in the ordinary course of his trade or business, shall be void as
against the creditors of the seller, unless the purchaser receives from
the seller a list of the names and addresses of the creditors of 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 of the property, or before paying therefor,
notify in person or by registered mail, every creditor whose name
and address is stated in said list, or of whom he has knowledge, of
the proposed sale.”
.
,
. , . . . * ,
In lieu of notice may give bond twice amount debts shown by
sellers affidavit signed by two resident sureties, who justify for prop
erty in excess of the obligation of the bond the bond to be approved
by the clerk of the district court of the county where the property
sold is located.
Chattel Mortgages. A mortgage of personal property, where the
property is not immediately delivered to the mortgagee who retains
actual and continuous possession thereof, is void as against creditors
1773
of the mortgagor and as against subsequent purchasers and mortgagese
in good faith, unless the mortgage, or a copy thereof is filed in the office
of the register of deeds in the county where the property is situated,
or if the mortgagor is a resident of the state, then of the county of
which he is at the time a resident. A mortgage so filed is invalid
i after two years unless within thirty days next preceding the expiration
of such two years and each two years thereafter the mortgagee, his
I agent or attorney, makes an affidavit exhibiting the interest of tho
I mortgagee in the property and showing the balance unpaid on the
debt, and files the same in the same manner as the mortgage. In
case of default the mortgagee may sell in the manner provided in the
chattel mortgage.
A mortgage of exempt personal property is invalid unless executed
jointly by husband and wife where tnat relation exists unless it be
given for the purchase price of the mortgaged chattel.
Collaterals. Governed by the common law on Bailments and
Pledge.
Conditional Sales.
I
i
[
:
j
!
■
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
offloe of the register of deeds In the same manner as such chattel
mortgages but remain In foroe without the renewal affidavit required
tn 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,
and in suits upon written contracts, as to the performance of con
ditions precedent, it is sufficient to allege generally that plaintiff has
fully performed the contract.
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, or less,
as may be specified in the charter. No corporation (except railroad,
banking, and building and loan), can commence business until it
file with the secretary of state an affidavit made by its president and
secretary setting forth that not less than 20 per cent of its capital
stock has been paid in actual cash, or property equivalent thereto,
but a corporation de facto exists if the 20 per cent has been paid
even thougn the affidavit has not been filed. The name adopted
must indicate the nature of the business. The corporate name must
begin with the word "the” and end with the word “corporation,”
"company,” “association,” or "society,” but tnis does not apply
to banks, benevolent or religious 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 or on
before March 31st of each year, showing a complete detailed state
ment of the condition of such corporation, on the 31st day of December
next preceeding. 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 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: Not 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 Monday in each month and special or adjourned
terms may be held as business may require. Justice’s jurisdiction in
civil actions for the recovery of money, $300: to recover specific
personal property not valued in excess, $300. Tho supreme court is
the court of last resort.
»
Creditors' Bills. Creditors may bring an action In the nature of
a creditors' bill to marshal assets or set aside fraudulent conveyances
as In other states.
Days of Grace. 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. Deeds
may be valid as against attaching creditors without being recorded.
The wife should join with her husband In tlie 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
In cases where the acknowledgment Is made out of the
Subllc.
tate It must be made before a court of record, a clerk, or other
officer having the seal thereof, a commissioner of deeds tor 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 ana national holidays not being regarded. If
taken by Interrogatories and cross-lnterrogatorles, 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
1774
BANKING AND COMMERCIAL LAWS—KANSAS
answer written down. If tne depositions are taken before the mayor,
notary public, or commissioner appointed as aforesaid, they must
be certified under his official seal. If before any officer not possessing
a seal, a certificate must be annexed, under the seal 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 certificate of the officer (not possessing a seal) who took the
depositions.
Descent and Distribution. The homestead is the absolute
property of the widow and children—one-half In value to the widow,
and 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-half of all real estate owned by
husband during coverture, and not conveyed by husband and wile,
nor sold at ludlclal 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 tne State. Remaining real estate goes to the surviving
children, and living issue of prior deceased children, children taking
per stirpes, in equal shares, or, if none, the whole estate goes to the
widow. For want of wife or child or living issue of 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 of surviving
spouse. Property descending by law or will is subject to an inherit
ance tax, varying in percentage according to relationship and amount.
(See Exemptions.)
Dower.
bution.)
Dower la abolished by law.
(See Descent and Distri
Evidence. (See Testimony.)
Executions may be ordered as soon as judgment is obtained if stay
has not been granted or supersedeas given. Executions running to
the sheriff of the county where the levy is to be made, may be levied
on property in any county of the State and issue only out of court
where judgment obtained except where abstract or transcript of justice
judgment filed in district court of same county as that of the justice
court, execution will issue on said judgment only out of said district
court. There is no stay of execution in the district court except by
supersedeas bond which may be given on appeal. In justice's courts,
by tiling bond, stays of execution are granted as follows. On any
judgment for $20 and under, thirty days; over $20 and under $50,
sixty days: over $50 and not exceeding $100, ninety days; over $100,
one hundred and twenty days. Real estate is only subject to execu
tion issued out of district court of county wherein judgment rendered
or abstract or transcript from justice of the peace filed. Executions
are liens on personal property only from time of levy. Real estate
sold on execution or order of sale, giving the debtor eighteen months
in which to redeem. The debtor is entitled to possession of the
property and rents and profits, during the period provided for redemp
tion, except in case of waste. Receiver may be appointed to present
waste and may use so much of rents and profits as are necessary to
repair waste and pay costs of receivership. Surplus if any, to be paid
to judgment, debtor free from the lien of any judgment.
Exemptions. 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 tor 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 ot any
professional man necessary for carrying on such trade. Also personal
earnings of the debtor earned during three months preceding the
garnishment or attachment, and three months’ pension money, where
such earnings or pension money is necessary for the support of the
debtor's family, but 10 per cent of such earnings may be required
to be. paid in and applied on the judgment.
Foreign Corporations. A foreign corporation doing business in
this State must file a certified copy or its charter or articles of in
corporation with the secretary of 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 March
31st, giving condition on the 31st of December preceding. If a
foreign corporation fails to file with the secretary of 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 of their
capital represented by Its property and business in Kansas on the
same basis as domestic corporations. Failure of foreign corporations
who transact business in Kansas, other than Interstate commerce,
to comply with this law renders them subject to ouster and receiver
ship proceedings on the part of the State and may be plead by a
defendant in suits in the state courts of Kansas, brought by the
corporation as a stay of further proceedings until such time as the cor
poration shall have complied with the law.
Fraud. (See Attachments, Arrest, and Assignments.)
Garnishment In District Courts. 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 plainfiff 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 garnishment summons. In justice courts the affidavit
differs from that acquired in district court actions only in that affiant
states that plaintiff is in danger of losing his claim, in lieu of the
allegation that the defendant has not property subject to execution
sufficient to satisfy the debt. In the district courts bond in double
amount claimed is required on garnishments before judgment, except
where defendant is a non-resident. No bond required in justice
courts.
Guaranty Companies.
(See Trust Companies.)
Holidays. The following are legal holidays: January 1st. known
as New Years Day. February 12th, Lincoln’s Birthday. February
22nd, Washington’s Birthday. May 30th, Memorial Day. July 4th,
Independence Day. First Monday in September, Labor Day. Oc
tober 12th, Columbus Day (but does not affect commercial paper).
December 25th, Christmas Day. If any of these days fall on Sun
day the next secular or business day is a legal holiday. Legal or busi
ness proceedings had on a holiday, except Sundays, are valid.
Husband and Wife. (See Married Women.)
Injunctions. Injunctions may be granted by a district court or
by the Judge thereof at the beginning of an action or afterwards. In
his 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
grant temporary Injunctions.
Insolvency. (See Assignments.)
Interest. Legal rate, 6 per cent, but 10 per cent may be agreed
upon. Excess of 10 per cent Is forfeited, and In addition thereto there
shall be deducted from the amount due for principal, with lawful
Interest, an amount equal to the Interest contracted for In excess of
10 per cent. The legal Interest originally contracted for continues
until the debt Is paid, and no additional Interest can be charged by
way of penalty for default except from date of default. A purchaser
of a negotiable note for value before maturity, without notice, takes
the note free of the usurious taint.
Judgments. Judgments of courts of record are Hens on the real
estate of the debtor within the oounty from the first day of the term
at which the judgment was rendered: but Judgments by confessloa
and Judgments rendered at the same term during which the action
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 of the judgment appearing of record in
the district court 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. Abstracts or transcripts of justice oourt
judgments may he filed in the district court of the same county,
after which executions issue only out of said district court on such
udgments.
Jurisdiction. (See Courts.)
License. Agents of Insurance companies are required to take out
licenses from the superintendent of Insurance. Cities are authorized
to enact license ordinances and certain classes of business are required
to take out a license.
Liens. Mechanics, material-men, and laborers, both original con
tractors, and sub-contractors, and laborers of sub-contractors, are
entitled to obtain liens upon real estate for labor performed or material
furnished in the erection or repair of any building. Sworn statements
itemized as fully as practicable as to tne amount of the claim, for
what and when it was rendered and by whom, giving names of con
tractor and owner and description of property and date of last material
furnished, must be filed in the office of the clerk of 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 of filing
of lien claim to owner or person in possession of the premises, where
that may be done, otherwise must post notice on the premises.
Supreme court has rendered notice almost unnecessary. Action to
foreclose lien must be begun within one year after filing claim. Liverystable keepers, forwarding merchants and common carriers have liens.
(See Judgments.) Attorneys have lien on papers and funds in hand
for general balance of compensation and have lien on moneys in hands
clients adversary due client in any matter, action or proceeding, in
wnich the attorney was employed for services therein from the time
of service on the adverse party, in the manner of a summons, of
written notice of the lien.
Blacksmiths, horseshoers, wagon makers and garage proprietors
given lien for material and labor in their work perfected by filing
statement of lien wituin sixty days after the services in the office
of the register of deeds cf the county where performed—foreclosed
in same manner as chattel mortgage.
Limitations of Suits. An action tor 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 live 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, standee,
malicious transaction, or false Imprisonment upon a suit for penalty
or forfeiture, one year. Action (or 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 of such ronewal. Con
tractual limitations differing from the statutes are void.
Married Women. The real and personal property owned by a
woman at the time of her marrtage. and any property which comes
h*fr i de,oe,nt- devise, or bequest, or gift of any person except her
hnsbana, remains her sole and separate property notwithstanding her
J“ar£, rj’ £nd 18 not subject to the disposal of her husband or liable
lor nis debts. Married women may sell and convey their real and
F”.1?0 i ,Pr°Perty ahd enter into any contract with regard to the
same in tne same manner and to the same extent as a married man
tloD I? Vls Property. She may sue and be sued In the
rnanne!, as K *he were single. She may carry on any trade or
business, perform labor or services for her separate aooount, and her
earning* or proceeds from labor, trade, or business remain her separate
ETpbcrt.v, a i i may *?e, used and invested by her in her own name.
Her husband is not liable for her debts incurred in her separate busi
ness undertakings by virtue of the marriage relation. She may also
contract with her husband with the same effect as though the married
relation between them did not exist.
Mines and Mining. 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.
I his law is quite elaborate and violations of the safety provisions of
the actr—resulting in injury to employees, usually results in liability
even where the Kansas Workmen’s Compensation Act does not
apply, on the part or the mine operator to the employees because of
the positive duty resting on the operator to comply with such statutory
provisions.
Mortgages. A mortgage of real estate, to be valid as against
subsequent bona-fide purchasers without notice, must be duly ac
knowledged and recorded in the office of the register of deeds of the
county where the land is situated. Mortgages may be valid as against
attaching creditors without recording. Mortgages may be discharged
on margin or record by mortgagee or attorney or assignee by duly
acknowledged power of attorney or assignment in presence of register,
or ffy satisfaction entered on the instrument when copied on the
margin by the register; or by an Independent release duly acknowledged
and recorded. v\ife must join in all mortgages except those for
purchase money, except In cases where she has never been a resident
of the State. Mortgages are foreclosed by suit only. By an act
of the Legislature which took effect May 18. 1893, real estate sold
under foreclosure of mortgage is subject to eighteen months redemption.
If the mortgage foreclosed is on abandoned property or not occupied
in good faith and the court so finds, six months only Is allowed for
BANKING AND COMMERCIAL LAWS—KENTUCKY
redemption. This act does not apply to mortgages executed prior
to the date the act took effect. When a mortgage is assigned the
assignment should be acknowledged and recorded. If the assignment
was executed prior to March 15, 1899, it can be recorded whether
acknowledged or not, and under the laws must be recorded within
four months from that date or payment to the recent owner of the
mortgage without notice of the outstanding assignment, 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.)
Notaries. Notaries are appointed by the Governor and serve tor
tour years. They give bond in the sum of $1,000 and are required
to affix the date of the expiration of their commission to all certifi
cates.
Notes and Bills of Exchange. Uniform Negotiable Instrument
Act took effect June 8. 1905.
Partnerships. Limited or special partnerships may be formed
for any legal purpose except banking or Insurance Such partnerships
may consist of one or more persons who are general partners, and
one or more who contribute a specific amount of capital and shall
be called special partners. The special partners are not liable for the
debts of the partnership beyond the amount contributed by them
respectively but the names of the special partners must not be used
In connection with the business. Such a partnership is formed by
executing a certificate stating the name, the nature of the business,
the names ol the general and special partners, and their place of
residence, and the amount of capital contributed by each special
partner, and the period when the partnership is to commence and
when it will terminate. The certificate must be acknowledged and
filed and recorded in the office of the county clerk.
Power of Attorney. (See Deeds.)
Probate Law. (See Administration.)
Protest. (See Notes and Bills.)
Records. (See Deeds.)
Redemption.
(See Mortgages.)
Replevin. The plaintiff In an action to recover the possession ot
specific personal property may claim the immediate delivery of the
same by filing affidavit and giving bond double the sworn value of
the property. Property replevined must be held by the officer taking
it twenty-four hours, during which time the party from whom the
property is taken may give bond to the plaintiff for not less than
double the amount of the value thereof conditioned for the return
of the same or its value in case it shall be adjudged the plaintiff is
entitled thereto, and thereupon may have the property returned to
him.
Service. All service of process Is made by the sheriff or by con
stables. or by some one specially authorized in any particular case,
and must be Issued In the name of the state with the seal of the
officer issuing the same affixed.
Suits. (See Actions.)
Taxes. One-half the annual levy for taxes becomes due Decem
20. and if not paid the whole amount becomes due and there is a
penalty of five per cent added. If the whole amount is paid there
Is a rebate of 5 per cent on the last half. If not paid by June 20 of
the succeeding year, another 5 per cent penalty is added. When
the tax upon real estate is delinquent, it Is sold for taxes on the first
Tuesday in September following. After sold it bears interest at the
rate of 15 pet cent per annum and the same rate upon subsequent
taxes paid and indorsed on the tax certificate. The tax lien attaches
to real estate on November 1. in the year in which the tax Is levied.
After land Is sold for taxes. It may be redeemed within three years
from date of sale. The interest of a minor may be redeemed at any
time within one year after he attains his majority, and idiots and
Insane persons may redeem within five years after the sale.
Trust Companies. Trust companies may be organized with a
capital of not less than $100,000, and may receive moneys In trust
and execute any trust committed to them, either by any person or
by order of any court, and may execute or guarantee any bond
required by law to be given In any proceeding In court, and act as
agent for the Investment of money and for the purpose of Issuing,
registering, transferring or countersigning certificates of stock, bonds
or other evidences of debt, act as guardian and guarantee the fidelity
and performance of duty of persons holding public offices or private
trusts, and certify and guarantee title to real estate and sell all kinds
of negotiable paper, and receive deposits from banks and other trust
companies or public officers. They are required to keep on hand 25
per cent of deposits subject to check and 10 per cent of time deposits.
In the same manner as state banks. Each director must be a stock
holder In the sum of not less than $1,000. Trust companies are
under the supervision of the bank commissioner and subject to his
examination.
Trusts and Powers. All trusts concerning lands must be created
In writing except such as arise by Implication of law.
Warehouse Receipts. Practically the Uniform "Warehouse
Receipts Act.’’
Wills. Any 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 by 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 witnesses
who saw him subscribe or heard him acknowledge it. Wills executed
without the State in the manner prescribed by the law either of the
lace where executed or of the testator’s domicile or of the State of
iansas are declared legally executed. Compliance with these re
quirements should appear n the witnessing clause. A will executed,
proved and allowed in another State, in the court of original probate,
according to the laws of that State, may, relative to property in this
State be admitted to record in the probate court of the county in
which such property is situated, by producing an authenticated copy
of the will and order of probate admitting it to probate by the proper
court of the county and State of which deceased died a resident.
Every will, when admitted to probate, shall be filed in the office of
the probate court and recorded.
ber
S
SYNOPSIS OF
THE LAWS OF KENTUCKY
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Moorman & Woodward, Esq.,
Attorneys at Law, Louisville.
(See Card In Attorneys’ List.)
Acknowledgments. 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
1775
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.
Actions. Actions are commenced by filing In the clerk's office ot
the proper court a petition setting forth the cause of action and
causing a summons or a warning order to be Issued thereon. . Non
residents and corporations, other than banks, created by laws of this
State, are required to give security for costs.
Administration of Estates. Personal estates of deceased 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 the county In which the decedent
resided at the time of his death. Administrators and executors are
required to give bond for the faithful performance of their duties
and with surety unless otherwise directed by the will. They are
required to file an Inventory of the estate within three months and
to make settlement within two years from the date of qualification.
Affidavits. An affidavit may be read to verify a pleading, to
prove the service of a summons, notice, or other process, in an action;
to obtain a provisional remedy, an examination of a witness, a stay
of proceedings or a warning order; or, upon a motion. An affidavit
may be made: 1. In this State, before a judge of a court, or a
Justice of the peace, notary public, clerk of a court, or master-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.
Apneals. Appeals may be taken from a justice's court to the
quarterly court regardless of the amount in controversy; from the
quarterly court to the circuit court when the value in controversy,
exclusive of interest and costs, exceeds $25; from the circuit court to the
court of 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 of 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 of the Court of Appeals,
enter a motion that the appeal be granted. If the court upon exam
ination of the record decides the appeal should not be granted, the
motion shad be overruled without a written opinion, and no petition
for a rehearing will be entertained, but if the court should be of opinion
the ends of justice require the judgment be reversed then the appeal
will be granted and a written opinion will be tiled. No appeal lies
to the court of appeals from any judgment of a quarterly, city, police,
fiscal or justice’s court, nor from any Judgment of the county court.
Arbitration. AU controversies which might he the subject of a
suit may be submitted to the decision of one or more arbitrators, or
two and their umpire. The submission may be In writing or by
entry of record, and the agreement of submission shall be binding on
the parties thereto, if It states the matter to be submitted and who
are to be the arbitrators. Each arbitrator and the umpire. If one
be chosen, shall take an oath to decide the matter in controversy
fairly 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
controversy between the parties. A copy of the award must be
given within a reasonable time and shall be binding upon both.
Arrest. An order for the arrest of the defendant shall be made
by the court In which the action is brought or pending, at Its com
mencement, or at any time before Judgment, If an affidavit of the
plaintiff be filed In his office showing: 1. The nature of plaintiff’s
claim. 2. That It Is Just. 3. The sum or value, which the affiant
believes the plaintiff ought to recover. 4. That the 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 tor his use, and Is about to depart from this
State without leaving property therein sufficient to satisfy plaintiff's
claim.
Assignments and Insolvency. Subject to National Bankrupt
Law, Every voluntary assignment made by a debtor to any person
In trust tor bis 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,
■hall 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,
■hall 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-thlrds of the
amount of debts against the estate shall so request In writing, the
court shall remove the assignee and appoint another in his stead.
Attachments. The writ may issue against a defendant who Is a
foreign corporation or non-resident of the State: or has been absent
from State four months: or has left the State with Intent to defraud
creditors: or has left his county to avoid service of summons; or
»o 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 bis 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 ot
nulla bona. Also In action for personal property ordered to be
delivered to plaintiff which as part thereof has been disposed ot,
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 nullabona return.
1776
BANKING AND COMMERCIAL LAWS—KENTUCKY
Banks. It Is unlawful for any person or persons, either as
individuals or co-partners to engage in or conduct the business of
private banking In this commonwealth. Corporations may be 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 of Banking, providing for a
Banking Commissioner, deputy commissioner and examiners of State
banks, and prescribing their duties and for the examination of all
financial institutions organized and doing business under the laws of
the State was created by a law effective July 1st. 1912.
Chattel Mortgages and Deeds of Trust. No deed of trust or
mortgage, conveying a legal or equitable title to real or personal
estate, shall be valid against a purchaser for a valuable consideration,
without notice thereof or against creditors, until such deed shall be
acknowledged or proved according to law, and lodged for record. It
Is a penal offense, punishable by fine and Imprisonment, for any 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 of checks in this State upon banks where
the drawer has not sufficient funds on deposit to pay same is now a
criminal offense. If 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 of the Court or Jury. If
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 of the check shall pay same within twenty days after
receiving notice of the dishonor of the check, he shall not be prose
cuted; or if the prosecution has been begun, it shall be dismissed at
cost of the maker of 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 be founded upon them. The State or
county seal, or the seal of a court, corporation, or notary to any
writing has not, however, been dispensed with.
Conveyances. (See Acknowledgments.)
Corporations formed under the general laws for transaction of
any lawful business. Special regulations prescribed for foreign 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
equally and ratably, and not one for the other, for all contracts and
liabilities of corporation to extent of the amount of their stock at
par value In addition to amount of such stock; but persons holding
stock, as fiduciaries, are not personally liable, but estates in their
hands are in same manner and to same extent as other stockholders,
and no transfer of stock operates as a release, of any such liability,
existing at time of transfer, provided action to enforce the liability
be commenced within two years from time of the transfer. Articles
acknowledged and recorded like deeds in county in which principal
place of business Is situated, and a copy thereof filed and recorded
In the office of the secretary of State. After such filing and recording,
and payment to State of license tax of one-tenth of 1 per cent on
Its capital stock, corporation Is deemed organized: but, before 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.
Courts. General civil and criminal jurisdiction Is vested In elr.
cuit courts which hold terms In each county as provided by statute.
Credits. By 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 of procuring delivery of personal property, the pay
ment of cash, the making of a loan or credit, or extension of credit,
and procures upon faith thereof either or any of the things or benefits
mentioned, shall be guilty of a felony and upon conviction, shall
be confined in the penitentiary not less than one nor more than five
years.
Days of Grace. (See Notes and Bills of Exchange.,
Depositions may be taken in all equitable actions, and in ordinary
or common law actions, where witness resides twenty miles or more
from place where court is held, or is absent from State, and in many
other cases enumerated in the statute where the witness is privileged.
Depositions are taken either on notice to opposite party or upon
written interrogatories. The ordinary method of taking is upon
notice, but where place of taking Is more than one day's travel by
ordinary methods and more than one hundred miles from the place
of sitting of court, the party receiving notice may require deposition
to be taken upon interrogatories by giving notice to that effect to
adverse party or his attorney upon same day, or day following one
upon which first notice was served. Except in divorce cases, 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 ba defendants, or under disability
other than coverture or Infancy and coverture combined. In several
other cases enumerated in the civil code, the court may require
depositions to be taken upon interrogatories, and they may always
be so taken by consent of all parties. Officers authorized to take
depositions in this State; An examiner appointed by judge of cir
cuit court of this district, a Judge or clerk of a court, Justice of peace,
or notary public. Depositions may be taken out of this State before
a commissioner appointed by governor of this State or before a
judge of a court, a justice of peace, mayor of city, notary public,
or any other person empowered by a commission issued to him by
consent of the parties or by order of court. If deposition is taken
upon interrogatories neither party is allowed to be present, either
in person or by agent attorney. The officer’s certificate must state
when and where the deposition was taken: that the witness was
duly sworn before giving It, and that it was written and subscribed
by him In officer’s presence, or was written by officer In presence
of witness and read to and subscribed by witness in presence of offloer.
Descent and Distribution of Property. The real estate of a
person dying intestate shall descend in parcenary to his kindred, male
and female. In the following order, viz: (1) To his children and
their 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 entitled 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 biood. In making
title by descent, it shall be no bar to a party that any ancestor,
through whom he derives his descent from the intestate, is or has
been an alien. Bastard can Inherit in the descending line only from
the mother and her kindred, and can transmit inheritance in the
ascending line only to the mother and her kindred.
Dower. (See Husband and Wife.)
Executions may issue upon Judgment any time until collection
of it is barred by limitation, but no execution shall Issue on any
Judgment, unless ordered by the court, until after ten days from
rendition. Execution constitutes lien on property of debtor from
time it reaches hands of proper officer. Execution may be replevied
for three months, any time before sale under same, by defendant
giving to the officer an obligation (replevin bond) payable to plaintiff,
with good security for the amount thereof. Interest and costs. A
Judgment to enforce a iien 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 railing to pay over money collected by
him in such capacity, nor against a Drinclpal 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 a 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,
Exemptions. The following property of persons with a family
resident in this Commonwealth, shall be exempt from execution,
attachment, distress, or fee bill, namely: Two work beasts, or one
work beast and one yoke of oxen; two plows and gear; one wagon
and set of gear, or cart or dray; two axes, three hoes, one spade, one
shovel; two cows and calves; beds, bedding and furniture sufficient
for family use; one loom and spinning wheel and pair of cards; ail
1 the spun yarn and manufactured cloth manufactured by the family
necessary for family use; carpeting for ail 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
j for live stock. If there be any such stock, not to exceed seventy dollar*
I In value; and if such provender be not on hand, such other property
‘ as shall not exceed such sum In value; all washing apparatus, aot t®
I exceed fifty dollars in value; one sewing machine, and all family
1 portraits and pictures; one cooking stove and appendages, and other
I cooking utensils not to exceed in value twenty-fiv* dollars; ninety
J per centum of the salary, wages, or income earned by labor, of every
person earning a salary, wages, or income of seventy-five dollars or
less per month, provided that the lien created by service of garnish
ment, execution, or attachment, shall only affect ten per centum
of such salary, wages, or income, earned at the time of service of
process; of the salary, wages, or income earned by labor, of every
erson earning a salary, wages or income in excess of seventy-five
ollars per month, sixty-s*ven and one-haif dollars per month and
; no more shall be exempt.
Tools of a mechanic, not exceeding one hundred dollars in value;
libraries of ministers of tbe Gospel, professional libraries of lawyers,
professional libraries and instruments of physicians and surgeons, not
I to exceed in value five hundred dollars. In addition to personal
property there is for actual bona fide housekeepers with a family
j resident in this Commonwealth a homestead exemption or 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 of the land, or
of the erection of the improvements thereon.
Personal property or money on hand or in bank to the amount of
j $750.00 shall be exempt from distribution and sale and shall be set
1 apart by the appraisers of the estate of an intestate to his widow ana
children, or, if no widow, to his infant children or child surviving him.
The appraisers shall state In their appraisement the money or the
articles and value of each Ret apart by them to the widow, or lufante.
separately to tbe articles appraised for sale, but if the widow be present
at the time of the appraisement, or any one authorized by her in
writing, she may make her selection out of the property appraised to
the amount of said $750.00 and said appraisers shall so report, ff he
1 provisions of this section shall apply to cases where the husband dies
testate, and the widow renounces the provisions of the will In the
time prescribed by law.
;
Holidays, The 1st dav of January, the 22d day of February, the
80th day of May, the 4 th day of July, the first Monday In September
(Labor Day), the 12th day of October (Columbus Day), the 25th
» L. tP®ce“ber of each year, and all days appointed by the president
V1?r5Jn,lte4 ®t,at es- or by the governor of this State, as days of fasting
and thanksgiving are declared holidays, and shall be treated as Sun
day. if any of those days named as holidays shall occur on Sunday,
the next day thereafter shall be observed as a holiday.
Husband and Wife. By an act which took effect June 12, 1894,
the following Important changes were made in the common law of
j ooverture which theretofore prevailed In Kentucky. Marriage give*
to the husband during the life of the wife no interest In any of
the wife 8 property. She has full power to contract and to bind
herself and her property, except that she can not bind herself to
answer for the debt, default, misdoing of another, exoept as to property
get 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 th*
death of either husband or wife the survivor shall have a life estate
tn 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.
Interest. The lawful rate of Interest Is 6 per centum per annum,
and contracts for a greater rate are void as to the excess of Interest.
Judgments. A Judgment does not constitute a lien on property
in this State. All judgments bear interest from their dates. (See
Executions and Limitations.)
Limitations. The following are tne periods within which action*
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 same; for the specific recovery of personal prop
S
BANKING AND COMMERCIAL LAWS—LOUISIANA
erty; actions upon negotiable instruments, though as to the makers
of 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 yeais: Actions upon merchant's
accounts for goods sold. One year: Actions for injury to person or
character and for breach of promise of marriage.
Notes and Bills of Exchange. An act relating to negotiable
Instruments became a law June 13, 1904. Section 1 declares that an
Instrument to be negotiable must conform to the following 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.
Powers of Attorney. Powers of attorney to convey real or per
gonal 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.
Protest. Where any negotiable Instrument has been dishonored
it may be protested for non-acceptance or non-payment as the case
may bo; but protest is not required, except in the case of foreign bills
of exchange, it is the safer practice to protest in all cases, because
in all cases notice of dishonor is necessary to charge parties secondarily
liable.
Taxation. Taxes due the State by banks and. trust companies are
payable directly into the State treasury on or before the first day of
July succeeding reports by their chief officers required to be made to
auditor of public accounts, and taxes to counties, cities, towns and
districts are paid at the time fixed by law for payment of like taxes.
Wills. Any person of sound mind and over twenty-one years of
age may make a will. Wills must be In writing with the name of
the testator subscribed thereto either by himself or by some other
person in his presence and by his direction. If not wholly written
by the testator the subscription must be made or the will acknowledged
by the testator in the presence of two witnesses, who shall subscribe
their names in the presence of the testator. The will of a person
domiciled out of this State Is valid as to personalty, if executed accord
ing to the law of the domicile; but to be valid as to lands, it must be
exeouted as required by the law of this State. The county oourt
has exclusive original Jurisdiction over the probate of wills.
SYNOPSIS OF
THE LAWS OF LOUISIANA
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by Messrs. Merrick, Gensler & Schwarz,
Attorneys at Law, New Orleans.
(See Card in Attorneys’ List.)
Accounts.
(See Acknowledgments.)
Acknowledgments of deeds executed within the State may be
made before a Judge, notary public, parish recorder or his deputy. In
the presence of two witnesses. These witnesses must be over fourteen
years of age. In other States, before a commissioner of Louisiana,
ar any officer authorized to take depositions In the State where he
resides, but the official character of such officer must be properly
verified. A Louisiana commissioner may certify to the official 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 lustlce with
out other proof of signature, must be acknowledged ana signed before
a notary or commissioner of deeds. In other states any oath or
acknowledgment made before a notary public, duly appointed In Buch
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, aB 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,
ahargo d’affaires, secretary of legation, consul-general, consul, viceconsul, or commercial agent, and every acknowledgment, attestation,
or authentication of any of said Instruments, oaths, eto., 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 exeouted
in this State. [Aot 164 of 1898.1
Actions. Commenced by 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 of petition, defendant
is cited to appear ten days after receipt of citation in District Courts
and Justice of Peace courts outside of city of New Orleans. In city
courts of New Orleans, defendant must appear three days after receipt
of citation. Neither day of service nor day on which answer must
be filed is included in delay. If defendant Tails 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 of Peace courts judgment of default is confirmed the same day
as that on which default is entered.
Administration of Estates by exeoutors. administrators, or
tutors who are ex-offlclo 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 oredltors. Administra
tors and executors of other states must open succession of deceased
la the oourts of this State, and be recognized as such here before they
•an sue or be sued or transfer property In this State. Stock in looal
corporations may be transferred by non-resident, executors, etc.,
without the necessity of securing an order from the local court, but
no transfer can be made until the inheritance tax is adjusted. No
debts can be paid by administrator without authorization of probate
court. The administrator or executor presents to the court an
account or tableau of distribution setting forth tbe 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
1777
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 of administration, if there
is no dangtr of prescription, creditor may await filing of account and
then oppose same of claim, not included.
Affidavits. (See Acknowledgments.)
Aliens. There Is no law excluding them from buying or holding
lands. They are only excluded from voting.
Arbitration. 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
•f 1894.]
Arrest 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 of the debt. Minors,
interdicted person and women not subject to arrest for debt.
Assignments and Insolvency. State Insolvent laws superseded
by National Bankruptcy act.
Attachment. 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 ot 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, wltb 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.) Bond for $250 is sufficient if debtor resides outside of
stato but bond may be increased to amount of claim upon order of
court at demand of debtor. Garnishment may be had as anaccessory
either to a writ of attachment or fieri facias.
Banks. Banking corporations organized under banking laws
adopted in 1855, amended in 1888, in 1892. and in 1902. Savings,
deposit, and trust companies provided for by Act 150 of year 1888,
amended by Act 95 of 1892. which is now amended by Act 189 of
1902. The number of persons organizing must be five or more. No
special act of Incorporation can be passed. By Act 189 of 1902.
the general banking act of 1855 and the amendatorj’ acts of 1888 and
•f 1892 are amended as follows: 1. Period of time must be fixed
m act not to exceed ninety-nine years. 2. Banks can not nold real
estate for longer time than five years, except such as necessary for
the transaction of their business, or except that held as agent or
trustee. 3. All managers and directors shall be citizens of Louisiana.
4. Safe deposits and trust banks without power to Issue bank notes,
may be organized under this law with a capital of $50,000 or more,
ef which capital at least $10,000 shall be paid up before commencing
business. In incorporated towns with less than 20.000 Inhabitants
must have cash capital of not less than $30,000, which must be paid
ap before can commence business. It may be made a receiver,
trustee, assignee or syndic, and execute trusts of every description.
Money or other valuables deposited by married women or minors
may be drawn out without the authority of their husbands or tutors.
Under Aot 45 of 1902, banks organized to do a savings. safe deposit
and trust banking business must be composed of more than five
persons, may be organized for not longer than nlnety-ntne 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 by 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 Act 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 of 1910 and amend
ment thereof Act 96 of 1912.) Act 238 of 1910, amending Act 45
of 1902, provides for branches. Act 112 of 1910 creates a State
Banking Department having supervision over all state banks. Amend
ed by Act 48 of 1912.
Chattel Mortgages. As provided for by Act 198 of 1918, any
kind of movable property may be mortgaged for debts, for money
loaned, future advances nr to guarantee contractural obligations.
The act of mortgage must be passed before a Notary Public and two
witnesses and must be recorded in Parish where property is situated
and Parish where mortgagor resides in order to affect third persons
without notice. Chattel so mortgaged cannot be transferred from
one parish of the State into another without written consent of
mortgagee.
Collaterals must be delivered to be effectual, Act 9. of 1914
makes It a felony for a customer of bank to wrongfully dispose of
collateral security pledged to bank. Uniform Bills of Lading law
obtains. (Act 94 of 1912.)
Conditional Sale. Act 119 of 1918 makes lawful a conditional
sale of tank cars providing for retaking of car by conditional vendor
without right of redemption being given to vendee, all payments of
such date of retaking being forfeited.
Conveyances. AU 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
persons. Deeds are made under private signature or by act passed
before a notary public In the presence of two witnesses. Both vendor
and vendee sign, though signature of vendee Is not essential, as any
act of acceptance will answer. The notary in Parish of Orleans pre
serves the originals of deeds passed before him and certified copies
given by him are received as evidence in the courts. Every notarial
deed should contain (1) date of act and place where it was passed, (2)
names and surnames and qualities of contracting parties. (3) description
of the property, etc., (4) price of transfer and terms and conditions.
(5) The marital status of all parties must be given. When a married
woman executes a deed she must be authorized by her husband. The
husband acts alone in the sale of community property; the signature
of the wife being unnecessary.
Corporation*. Any number of persons, exceeding six, may form
themselves into corporations for literary, scientific, religious, and
1778
BANKING AND COMMERCIAL LAWS—LOUISIANA
charitable purposes: for works of public Improvement, and generally
of the disposer If he leave at bis decease a legitimate cnlld. one-half
all works of public utility and advantage; and any number of persons,
If he leaves two children, and one-third If he leaves three or more.
not less than three, may form themselves Into a corporation for the
An Inheritance tax is levied upon all inheritances, legacies and dona
purpose of carrying on mechanical, mining, or manufacturing business,
tions. provided no direct inheritance or donation to an ascendant or
except distilling or manufacturing Intoxicating liquors, with a capital
descendant below $10,000 shall be taxed. Tax Is 2 per cent on direct
not less than $5,000 or more than $1,000,000. Any number of per
inheritances and donations to ascendants or descendants or surviving
sons, not less than three, may form themselves Into a corporation on
wife or husband and 5 per cent for collateral Inheritances and donations
complying with tbs general corporation laws, for the purpose of carry
to collaterals or strangers. Bequests to educational, religious or
ing on any lawful business or enterprise not otherwise specially pro
charitable institutions are exempt. Inheritance tax not due when
vided for, except stock-jobbing. Fifty per cent of capital stock must
property inherited, bequeathed or donated shall have borne Its just
be subscribed before filing articles of incorporation and 50 per cent
proportion of taxes prior to time of such donation, bequest, or inherit
of all stock subscribed must be paid in before corporation en
ance. K. C. C. 915 amended to read "In all cases when either hus
gages in business and the remainder in twelve months under
band or wife shall die leaving no descendants, nor ascendants and
penalty of dissolution. The legislature can not pass a special act
without having disposed by last will and testament of his or her share
conferring corporate powers. Corporation committing a trespass
in the community property, such undisposed of share shail be Inherited
or damage may be sued at place where it occurred. [Act 22 of
by the survivor In full ownership." (Act 57 of 1910.)
1894.) All corporations hereafter organized must have their char
Divorce. (See Separation from Bed andBoard.)
ters, etc., recorded In the office of the secretary of state. (Act
'Dower. (See Married Women.)
59 to 1898.] (See act 154 of 1902 for formation of corporations for
works of public Improvement.) Act 120 of 1902 provides for organ
Employers Liability Act. There is a general Employers Liability
ization, etc. of local and foreign building and loan or homestead
Act in the State setting forth special compensation for various injuries.
associations. Three or more persons may form a corporation to
Execution. Property taken under a writ of tteri facias must be
carry on any business specified In charter that would be lawful for
advertised and appraised, and can not be sold for less than two-thirds
any individual to carry on. May carry on any named business or
of the appraised value, until It has been re-advertlsed. Advertise
different branches of business, whether related or not. Must have
ments of movables three times In ten days—of real estate once a
capital of net less than $3,000. [Act 78 of 1904 ] No corporation
week for thirty days. If two-thlrds of appraised value Is not bid,
can declare dividends out of its capital stock, under penalty of for
property must be re-advertised for Ofteen days, and sold on a credit
feiture of its charter. Meetings of corporations must be held at
for twelve months for whatever It will bring. There Is no redemption
domicile (Act 63 of 1910).
of
property sold under execution or mortgage. No stay of execution
Foreign Corporations may be licensed and taxed by a mode differ
Is given except on appeal, and execution may Issue at any time after
ent from that provided for home corporations. No domestic or for
the
delay for appealing suspenslvely has expired. Act 113 of 1906
eign corporations shall do any business In this State without having
authorizes sheriffs and constables to put purchaser of seized property
one or more known places of business and an authorized agent or
In
possession.
agents In the State upon whom process may be served. All corpora
Exemptions. To head of family, real estate If owned and occupied
tions (except mercantile corporations) domiciled out of the State and
aa a residence, together with certain furniture, stock, Implements,
doing business In the State In default of filing with the secretary of
provision'), eto.; the property not to exceed $2,000, and provided the
state a declaration of the place of Its locality or domicile together with
person claiming the benefit of the homestead execute a written declara
the name of Its agent In the State upon whom service of process may
tion of homestead (Acts 1880, No. 114), and no exemption If wife
be made, may be sued upon any cause of action In any parish where
has separate property worth over $2,000. No registry required In
the right of action arises.
parishes other than Orleans. (Operative Jan. 1. 1899.) Widow or
Foreign corporations must file In office of secretary of state a written
minor children surviving is entitled to $1,000 out of deceased hus
declaration setting forth and containing the place or locality of Its
band's estate, If In necessitous circumstances, by preference over
domicile, the places In the State where It Is doing business, and the
even a first-mortgage creditor. Sheriff or constable can not seize
name of Its agent or other officer in this State upon whom process may
linen and clothes of debtor or hls wife, nor hls bed, nor those of hls
be served. (Act 54 of 1904 amended by Act 284 of 1908. Act 284
family, nor hls arms and military accoutrements, nor tools and Instru
of 1908 amended by Act 243 of 1912. See Act 194 of 1912.)
ments and books, sewing machines necessary for the exercise of hls
Act 267 of 1914 relating to corporations repealed several
or her calling, trade, or profession, by which he makes a living, the
previous acts and undertakes to embody In one act all essen
right of personal servitude, of use and habitation, of usufruct to the
tial details with respect to the organization, power and duties
estate of a minor child, the income of total property, money due for
of trading corporations, foreign and domestic. (As to non
salary
of an officer, wages or recompense for personal service (laborers’
trading corporations see Act 259 of 1914.)
wages) cooking stove, plates, etc., family portraits, musical Instru
Courts. Terms and Jurisdiction. In parishes other than Orleans:
ments played on by family. (Acts 1876. No. 79.)
Justices’ courts—exclusive jurisdiction up to $50, and concurrent
Fraud vitiates all contracts. Action barred by one year limitation
with the district courts, between $50 and $100. 2. District courts—
to annual sale on account of fraud. For fraud on part of purchasers
concurrent with justices' courts, between $50 and $100; exclusive for
of goods see Act 114 of 1912 amending Act 94 or 1896.
all civil matters over $100, and In all probate matters and appellate
Garnishment. WageB earned out of this State and payable out
jurisdiction In all civil matters In justices' courts. In Orleans parish:
of this State, shall be exempt from attachment or garnishment In all
1. City courts—exclusive Jurisdiction up to $100.
2. Civil district
eases where cause of action arose out of this State, and It shall be the
courts—exclusive over $100. Justices and city courts open at all
duty of garnishees In such cases to plead such exemption unless the
times. In parishes other than Orleans, district courts shall hold con
defendant Is actually served with process. [Act 165 of 1904.] (See
tinuous sessions during ten months of the year. In parish of Orleans,
Attachment.)
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- |
Holidays. Sundays, January 1st, January 8th, February 22d,
locutory orders, Issuing writs, trials of rules to quash same, trying 1 Good Friday, June 3rd. to be known as Confederate Memorial Day,
proceedings Instituted, or on appeal therein by a landlord for the
July 4th, the first Monday of September, to bo known as Labor Day,
possession ot leased property, partition proceedings, ana for such
October 12th, Christopher Columbus Day, November 1st, Thanks
special probate and Insolvency business, as the court en bano may by
giving Day, as designated by the President of the United States,
rule determine. On all amounts up to $2,000, Inclusive, an appeal
December 25th, and all general election days, whether Presidential,
may be taken to the court of appeals, from the city and district courts
Congressional, State, municipal or parochial, in the localities where
respectively, and on all amounts over $2,000, to the state supreme
said elections are held: and in the Parishes of Orleans, St. Bernard,
court. An appeal lies on both law and tacts. Appeals from the city
Jefferson, St. Charles, and St. John the Baptist, Mardi Gras, and also
courts shall be tried de novo.
in cities and towns when the population shall exceed 10,000, and in
Days of Grace. Abolished.
the Parishes of St. Bernard, Jefferson, St. Charles .and St. John the
Depositions. To take testimony of witness residing out of parish
Baptist every Saturday from twelve o’clock noon until twelve o’clock
or State it Is necessary to Ole motion duly sworn to showing non-resi
midnight, to bo known as a half holiday; and in all cities and towns
whose population exceed 10,000, whenever January 1st, January 8th,
dence and materiality of evidence. Written Interrogatories are pre
February 22d, June 3d, July 4th, November 1st, December 25th shall
pared and served on opposite party, or hls counsel, who has three days
fall on a Sunday the succeeding day shall be a legal holiday.
In which to cross. Commission then Issues, directed to some proper
officer, with Interrogatories and cross Interrogatories annexed, who
Husband and Wife. (See Married Women.)
must cause witness to appear before mm to answer under oath the
Interest. Legal rate la 5 per cent, but 8 per cent may be agreed
direct and the cross Interrogatories, tie should reduce answer to
upon In writing. If higher than 8 per cent Is charged, It Is reducible
writing, read same to witness and cause witness to sign same. The
to 8 per cent. If paid. It may be sued tor and recovered within two
officer then prepares a process verbal of the whole, attaches it to the
years.
commission. Interrogatories, etc., and should return same to the court
Judgments recorded In the office of the parish recorder become
Issuing the commission within the time fixed therein for taking the
mortgages from date of record upon all real estate ot the debtor, and
deposition. The deposition of a fugitive from Justice Is not admissible
may be thus recorded In any parish where debtor owns real estate.
In evidence. (Also see Act 176 of 1910.)
They are valid for ten years, when they must he renewed.
Descent. If one dies leaving no descendants, but a father and
Liens or Privileges. The following have special privileges, viz.:
mother and a brother and sister, or descendants of these last, the
L .L'°5sor® privilege. 2. Privilege of the creditor on the thing
succession Is divided Into two equal parts, one goes to father and
pledged. 3. Privilege of a depositor on the price of a thing deposited.
mother, the other to brothers and sisters or their descendants. If
4. Privilege for expenses Incurred In preserving thing. 5. Privilege
either father or mother of deceased dies before htm. the portion which
of the vendor of movable effects so long as they are In the possession
would have oeen Inherited by such deceased parent goes to the
ot the vendee. 6. Privilege of the Innkeeper on the effects of the
brothers and sisters of the deceased, or their descendants. If deoeased
traveler. Privileges resting upon Immovables are as follows, viz.:
left neither descendants nor brothers nor sisters, nor descendants from
L The vendor on the estate by him sold, for the payment of the
them, nor father nor mother, but only other ascendants, they Inherit
price or so much of It as Is unpaid, whether It was sold on or without
to the exclusion of all collaterals. If nscendants In paternal and
a credit, 2. Architects, undertakers, bricklayers, painters, master
maternal lines are all of the same degree, the estate Is divided Into
builders, contractors, sub-contractors, journeymen, laborers, carttwo parts, one goes to ascendants on the paternal and the other to
men. and other workmen employed In constructing, rebuilding, or
ascendants on the maternal side. If there Is in the nearest degree
repairing houses, buildings, or making other works. 3. Those who
but one ascendant In the two lines such ascendant excludes all other
have supplied the owner or other person employed by the owner,
ascendants of a more remote degree. If one dies leaving no descen
hls agent, or sub-contractor, with materials of any kind for the con
dants, and his father and mother survive, his brothers and sisters,
struction or repair of an edifice or other work, when such materials
or their descendants, take half of hls estate. If the father or mother
have been used n the erection or repair of such houses or other works.
only survive, brothers and sisters, or their descendants, take three[Art. 3252.) Privilege on crops to be recorded (Act of 1890 ) The
fourths. If one dies leaving no descendants nor father nor mother,
vendor of an agricultural product of the United States has a five days’
his brothers and sisters, or their descendants, take all the estate.
for unpaid purchase price In preference to all others PrlvlThe partition of the half, the three-fourths, or the whole of a suc
firlvllege
ege granted employes In saw mills, etc. (Act 145 of 1888, amended
cession falling to brothers and sisters as above set forth. Is made equal
by
Act
52
of 1910 and Act 23 of 1912. Widow and children left in
If they are of the same marriage, if of differed' marriages the succession
necessitous circumstances are entitled to an amount in husband's or
Is equally divided between the paternal and maternal lines of the
father's
succession
sufficient to make 81.000 Inclusive of property
deceased. If deceased died without descendants, leaving neither
already possessed by them. This privilege primes all others except
brothers nor sisters, nor descendants from them, nor mother nor
vendor’s privilege, that for expenses of selling property and con
father, nor ascendants In the paternal or maternal lines, hls succession
ventional mortgages representing money actually loaned for not less
passes to hls other collateral relations, the one nearest In degree
than one year at not exceeding 6 per cent for Interest, discount and
excluding the others. When the deceased has left neither lawful
charges.
descendants nor lawful ascendants, nor collateral relations, the law
Limitations to Suits. Prescription—Accounts stated and
calls to his Inheritance either the surviving husband or wife, or hls
acknowledged In writing are prescribed only by ten years.. (Act of
or her natural children, or the State. Ir natural mother left no
1888.] Personal actions one year: Action for torts of all kinds: for
lawful children or descendants, her natural children, acknowledged
Injury to or non-delivery of merchandise shipped on vessels; for fees
by her inherit to the exclusion of her father and mother and other
of Justloe. notary, or constable, for Innkeepers accounts; for accounts
ascendants or collaterals of lawful kindred. Natural children Inherit
of retailers of liquors; for wages of laborers or sailors; for freight; and
from their natural father, who has acknowledged them, when he has
(or tuition by month Three years: Action for arrearages of rent
left no descendants nor ascendants, nor collateral relations, nor
charges, or hire of movables or Immovables or money lent, for salaries
surviving wife, and to the exclusion only of the State. Donations
of overseers, clerks, or tuition by quarter or year; for fees of physicians.
Inter vivos or mortis causa cannot exceed two-thirds of the property
BANKING AND COMMERCIAL LAWS—MAINE
1779
or partnership a certain amount, either In property or money, to be
employed by the person or partnership to whom It Is furnished. In
hla or their own name or firm, on condition, of receiving a "hare 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 mmt 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 oifice. If branch houses are established the con
tract must be recorded In parish where branches are located. If
Limited Partnership. (See Partnership.)
partner In commendam allow his name to be used, or If he take any
Married Women. Act 94 of the Legislative Session of 1916 pro
part in the business of the partnership, he will be liable as a general
vides that a married woman of this State shall be competent to con
partner. Ordinary partners are not bound in solldo for debts of
tract and bind and obligate herself personally and with refecence to
partnership, and no one of them can bind his partners unless they
her separate and paraphernal property, and to appear in Court and
have given him power to do so; each Is bound for his share of the debt
to sue and be sued to the same extent and in the same manner as
In proportion to the number of partners. Commercial partners are
though she were a femme sole: provided that nothing herein con
each Hable for the entire debts of the partnership.
tained shall be deemed or construed to affect in any way the statutes
Powers of Attorney. May be written or oral. May be either
of this State, establishing and regulating the matrimonial community
general for all affairs or special for one affair only. One conceived In
of acquets and gains, and prescribing what shall be deemed com
general terms confers only power of administration; to sell mortgage
munity and what be deemed separate property of the other spouse.
or do any other act of ownership, the power must be express and
Revenues of all separate property administered by the husband, and
special.
all property acquired by either husband or wife after marriage, except
by donation or inheritance constitute part of community, unless
Probate Law. There Is no special probate court. District courts
are vested with probate Jurisdiction. Successions are opened upon
bought with the separate means of either and as a separate acqui
sition. Wife has no dower in her husband's real estate. The wife
petition of Interested persons In the parish where the deceased resided.
can have no claim upon the property of the husband to the prej
If he had a domicile or fixed place of residence In the state; In the
udice of third parties, unless recorded. Where one of the spouses
parish where he left his landed property. If he had neither domicile
is agent for the otner, he or she may be witness for the other in
nor place of residence In the state; or In the parish In which It appears
a matter connected with that transaction, otherwise husband or wife
from the Inventory thaf his principal property was situated, If he
connot testify in favor or against the other even though both litigants
left property in several parishes; in the parish where he died. If he
consent. After dissolution of marriage by death or divorce the sur
had no certain domicile nor any fixed property. If presumptive heir
vivor is entitled to one half of all property remaining after payment
does not begin legal proceedings to settle succession within ten days
of debts, acquired during marriage, and in case of death, the usufruct
after death of "de cujus,” creditors may demand that he state whether
of the other half, unless this half is disposed of by will of deceased
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
spouse. Wife cannot be a witness to husband's will.
(See "Lie:>s
administrator when deceased leaves no will. Administrators must
and Privileges.”)
render annual accounts, and are allowed 2 1-2 per cent on the Inven
Monopolies or Trusts are regulated and rights are given against
tory as commissions. Attorneys at law are appointed to represent
them similar to those existing under Federal Law, The state author
absent heirs. Properties acquired during marriage are presumed to
ities may take action and the individual may recover threefold damages
community property, and surviving spouse Is owner of one-half.
sustained. See House Bills Nos. 7 and . extra session 1915, approved I be
When either husband or wife dies, leaving no ascendants or descend
June 10, 1915.
ants,
and without having disposed by will of his or her share In the
Mortgages can be foreclosed at any time after maturity of the
community, the survivor holds such share In usufruct during his or
debt by instituting a regular suit and obtaining Judgment thereon, or
her natural life. (See Successions.)
If the act imports a confession of Judgment In favor of the holder, he
Protest. (See Negotiable Instruments.)
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
Separation from Bed and Board. May be claimed reciprocally
have any effect as against third parties. Trust deeds are not legal,
for: 1. Adultery. 2. When spouse condemned to Infamous pun
and chatiel mortgages are unknown to the laws of Louisiana except
ishment. 3. Habitual Intemperance, excesses, cruel treatment, or
as stated under heading “Chattel mortgages." There is no redemp
outrages, when such renders living together Insupportable. 4. Publlo
tion of property sold under mortgage. All tacit mortgages have
defamation of one spouse by the other. 5. Abandonment. 6.
been abolished since 1870. In making sales or giving a mortgage
Attempt of one spouse against life of other. 7. When one spouse
upon his uroperty. it is not necessary for the husband to obtain the
charged with Infamous offense actually flees from Justice.
signature of ttie wife. A mortgage resulting from recording a judgment
Judgment of Divorce. “ A vinculo matrimonii" can be obtained
can not have that effect until after adjournment of court. [Act 1888.]
immediately for first two causes. For other causes it is necessary
Lessees obligated to erect buildings, etc., upon leased property, can
first to obtain judgment of separation “a mensa et thoro.” After
mortgage the lease, together with the improvements, etc. (Act 21
judgment of separation from bed and board, if there has been no
of 1908.) Leases and contracts to explore for oil, gas and minerals
reconciliation, party in whose favor judgment is rendered can obtain
may be mortgaged (Act 232 of 1910).
final divorce one year after finality of judgment of separation. Party
against whom judgment is rendered must wait two years. When
Negotiable Instruments. “Negotiable Instrument Act” (No.
marriage is celebrated outside of state parties cannot obtain divorce in
64 of 1904) changes In many respect" the laws formerly applicable to
state on grounds occurring outside of state.
bills and notes. Under It, days of grace, which formerly were custom
ary, are abolished. Instruments are payable to bearer If made payable
Taxes.
Taxes on real estate cannot be enforced until the expira
to the order of a fictitious or non-existing person, when such fact ts
tion of the year for which they are levied and after legal notices to
known to the one making It so payable; when name of payee does
delinquents and advertisement. Lands sold for taxes are redeemable
not purport to be name of any person; or when the only or last Indorse
within one year, by the owner, his agent, or heirs, or any creditor,
ment Is In blank. When there Is a discrepancy between the words
on payment of the purchase money, with 20 per cent Interest and
and the figures of an Instrument, the sura denoted by the words Is
oosts, and all subsequent taxes paid. Lands sold for taxes due prior
the sum payable Two or more persons signing instrument contain
to 1880 are not redeemable. State taxes are 8 mills on the dollar,
ing words. “1 promise to pay," are Jointly and severally liable thereon.
and parish taxes not exceeding ten mills; city of Now Orleans tax
Presentment for payment Is unnecessary to bind party primarily
22 mills on the dollar. Delinquent state taxes bear interest at 2 per
liable, but is necessary to charge drawer or Indorser. Notice of dlscent a month, city taxes, 10 per cent a year.
honoi must be given to drawer and Indorser when Instrument has
Wills. There are four different kinds of wills, viz.: The olo
been dishonored by non-acceptance or non-payment, otherwise they
nuncupative by public act, nuncupative by private act, and
are discharged. A bill of exchange does not operate an assignment I graphic,
mystic
(or sealed) will. The olographic will must be wholly written,
of fund" In hands of drawee available for payment thereof, and drawee I dated, and
signed by the testator, and may be made within or with
Is not Hable till he accepts same. Holder may require acceptance
out the State. Nuncupative will by publlo act as written by a
to be written on bill, and if refused may treat the bill as dishonored.
notary
In
presence
of three witnesses, over the age of 16 years com
An acceptance written on paper other than a bill, and an uncondi
plete, not Insane, deaf, dumb or blind, residing In the place where
tional written promise to accept a bill before It Is drawn, binds the
will
is
executed,
or
five witnesses not residents of the place, at the
acceptor only In favor oi a purchaser for value on faith thereof.
dictation of the testator. Nuncupative will by private act and mystic
Drawee has twenty-four hours to decide whether he will accept or
wills are subject to many formalities which may be best obtained by
not A drawee who destroys a bill presented to him for acceptance,
reference to Civil Code Arts, 1581-1587 both Inclusive. All persons
or who falls to return the bill within twenty-four hours. Is deemed to
of sound mind over sixteen years of age may dispose of their property
have accepted the same. Where a signature Is so placed upon a
by will. Wills executed without the state given force and effect
negotiable Instrument that It Is not clear In what capacity the person
provided same be In writing and subscribed by testator and follows
making same Intended to sign, he la deemed an Indorser. Foreign
form of place where executed, or of testator's domicile. (See act 176
bills must be protested for non-acceptance or non-payment. Where
of
1912.)
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
SYNOPSIS OF
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
THE
OF
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
RELATING TO
ness day When day of maturity falls on a Sunday or a holiday, the
Instrument is pavable on next succeeding business day Instruments
BANKING AND COMMERCIAL USAGES
tailing due on Saturday are to be presented for payment on next
Revised by Sydney B. Larrabee,
succeeding business day. except that Instruments payable on demand
may at option of holder, be presented for payment before 12 o'clock
Attorney at Law, Portland.
noon on Saturday when that entire day Is not a holiday. If the day
(See Card In Attorneys' List.)
or days next succeeding the protest for non-acceptance or non-pay
Acknowledgments. (See Deeds.)
ment shall be days of public rest or legal holidays or legal half holi
Actions. At law begun by writ, under common law practice, but
days. then tbe day next following shall be computed as the first day
containing declaration. Suits In equity are begun by bill of com
after the protest. “Service of citation shall not be waived, nor Judgplaint. filed with clerk of court and subpoena Issued by him, or may
ment confessed, by any document under private signature executed
be Inserted In writ of attachment and served by copy of bill and writ.
prior to the maturity of the obligation sued on.
[Article 91. Con
On motion non-resident plaintiffs required to give security for costs.
stitution 1898.) Acceptance must be In writing and signed by
drawee. It must not express that drawee will perform his promises
Administration of Estate. (See Estates of Deceased Persons.)
by any other means than payment of money. (Act 189 of 1908.)
Affidavits. Affidavits may be made before a notary public or
Partnership. Limited and Special. Stipulations that one shall
Justice of the peace. In some court matters authority of magistrate
must be proved by certificate of clerk of a court of record.
participate In the profits and shall not contribute to losses Is void,
both as regards partners and third persons. Partnerships are divided
Allens. Allens may bold and convey real estate and personal
as to their object Into commercial and ordinary partnerships, tomproperty. Wills of aliens may be proved and allowed In this State.
m eretai partnerships are such as are formed: 1. lor the purchase
Widow of a citizen ot United States who was an alien when she married
of any personal property, and the sale thereof either In the same
him has right of descent In his estate (but see Married Women).
state or changed by manufacture. 2. For buying or selling any
Arbitration. Judge of probate court may authorize executors or
personal property whatever, as factors or brokers. 3. For carrying
administrators
to adjust by arbitration claims tor or against the
personal property for hire. In ships or other vessels. Ordinary part
estates represented by them. All controversies which may be the
nerships are all such as are not commercial. There Is also a species
subject
of
personal
action may be submitted, by the parties, to referees
of partnership which may be incorporated with either of the other
tor arbitration. Majority ot referees may make report to Supreme
kinds, called partnership In commendam. It Is formed by contract,
or
Superior
Courts.
by which one person or partnership agrees to furnish another person
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 maturity. Five years: Action on bills of exchange or promis
sory notes, counting from maturity, and for nullity of contracts or
wills; for reclslon of partitions, to set aside public and ludlclal sales
for Informalities Ten years: All other actions; the right 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 ruD against minors or persons under Interdiction. Husband
and wife can not prescribe against each other.
LAWS
MAINE
1780
BANKING AND COMMERCIAL LAWS—MAINE
Arrest. (See Executions.) In actions ex delicto, on mesne proc
ess and execution, as ot course without affidavit or order; In actions
ex contractu, on mesne process, upon affidavit of the creditor, his
agent, or attorney, that he has reason to believe and does believe
that the debtor Is about to depart and reside beyond the limits of
the State and carry with him means of his own more than are neces
sary for his immediate support, and that at least $10 is due on the
claim; on execution, only after supplementary proceedings and fraud
proven, but if contract judgment or action existing March 17, 1887,
arrest on execution. Debtors arrested on mesne process or execution
may disclose, give up property not exempt from attachment and be
discharged from arrest, or may give bond and disclose according to Its
terms. No arrest In actions ex contractu for less than $10, and none
of married women In civil actions.
Assignments. Common law assignments for the benefit of
creditors may be made, and after four months will be good against
bankruptcy proceedings. Assignments of wages must be recorded
In town clerk’s office.
Attachment. All property not exempt attachable on mesne process as of course without affidavit: security for costs by Indorser of
writ only If creditor Is non-resident; lien by attachments In the order
In which they are made continue for thirty days after Judgment
(extended where 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 In lieu of the
property, foreign attachment (garnishment), known as trustee process,
attaches 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
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 havlng a branch here pay a tax of three-fourths ot 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 1-2
per cent dividend semi-annually. Franchise tax Is five-eighths per
cent, regulated to favor home Investments. Use of the words "bank/
“trust company,” and similar words In designating a business, for
bidden, except by corporations organized as above or under laws of
United States. Corporations, if licensed by bank commissiouer may
receive savings deposits from their employees. Dealers in
urities
must be registered with bank commissioner and are subject to certain
regulations.
Collaterals.
(See Mortgages.)
Courts. 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 bano 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 of every month, except June,
July, and August. Kennebec County; exclusive jurisdiction, with
exceptions to $500; concurrent in habeas corpus and divorce; sits
second Tuesday of January and first Tuesday of April and September
at Augusta; second Tuesday of June and November at Waterville.
Courts of probate: Usual jurisdiction 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.
Creditors’ Bills. Bill In equity may be maintained to reach
roperty of debtor which cannot be reached by process at taw, and
not exempt from attachment; also property conveyed In fraud of
creditors and property secreted so that it Is not replevlable.
Days of Grace. (See Negotiable Instruments.)
Deeds. Any owner of real estate having right of entry may con
vey It bv deed. No estate greater than tenancy-at-wlll 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 Beal, or woman qualified to take
acknowledgments; outside the State, and In the United States, before
a clerk of a court of record having a seal, notary public, or 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, hut 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
required for validity although usual to have one. Leases for more
than seven years must be recorded. Trusts concerning real estate
ean be created only in writing, except those arising by Implication
of law.
Depositions. Depositions may be taken by disinterested justice
of the peace or notary public; may he taken when deponent Is unable
through age, Infirmity, or sickness to attend at place of trial; when
deponent resides out of, or Is absent from the State; when deponent
resides In town other than that In which trial Is to be held, etc. Depo
sitions so taken may be used tn 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
ease It Is within the discretion of the courts to admit or reject them.
£
j
1
■
j
i
Descent and Distribution of Property. (See Estates of De
Conditional Sales, Consignments. No agreement that personal
property bargained and delivered to another shall remain the property | ceased Persons.)
of the seller until paid for. Is valid unless In writing and signed by the j
Dower. Abolished by laws of 1895, chap. 157, taking effect as
person to be bound. Such agreement. In whatever form It may be.
to persons not then married. May 1, 1895; as to others. Jan. 1, 1897.
Is not valid except as between original parties, unless recorded in the
Wife or husband may bar the right by Inheritance to one-third or
office of the clerk of the town In which the purchaser resides at the
one-half, as the case may be, of realty by joining In the other's deed,
time of the purchase. This does not apply to goods consigned for
or by sole deed, or by ante-nuptial settlement, or by Jointure. Either
salerefusing to join in other’s conveyance (or if Incapacitated with no
guardian in this state, other being a non-resident) may be barred of
Conveyances. (See Deeds.)
Inheritance upon application to supreme judicial court and decree
Corporations. Three or more persons may form a corporation to
after hearing. (See Estates of Deceased Persons.)
carry on any lawful business excepting banking. Insurance, construct
Estates of Deceased Persons. Eighteen months after notice of
ing and operating railroads, savings banks, trust companies, or cor
appointment allowed creditors to present claims and suit must be
porations Intended to derive profits from the loan or use of money,
begun and service of process made within twenty months after such
and safe deposit companies, but corporations may be formed under
notice of appointment. Allowance to widow and minor children,
the general law for the construction and operation of railroads outside
the State of Maine. Corporations for other purposes, excepting for | made by court from estate. Non-resident executor or administrator
must appoint attorney. Time of demand or notice extended for absent
municipal purposes, and where the objects of the corporation can not
creditor if further assets, but prior payments not disturbed thereby.
be attained without special acts, are also formed under general laws.
No administration granted after twenty years. The real and personal
Organization becomes void unless corporation begins business within
estate of a person deceased intestate (excepting wild lands conveyed by
two years. Corporation may capitalize to an unlimited amount and
him) being subject to the payment of debts descends according to the
may ’ncrease or decrease the amount of their capital or the par value
following rules: 1. II he leaves a widow and Issue, one-third to
of the shares. No portion of capital Is required to be paid in; stock
the widow. If no Issue, one-half to the widow. And If no kindred,
may be Issued for property or for services and In absence of fraud
tne whole to the widow. And to the widower shall descend the same
the judgment of the directors as to the value of such property or
shares m his wife's real and personal estate. There shall likewise
services Is conclusive, the stock thereupon becoming fully paid
descend to the widow, or widower, the same share In all such real
Only original subscribers and takers of stock are liable on same to
estate of which the deceased was seized during coverture, and which
extent of unpaid par value and then only for debts contracted during
has not been barred, or released, as herein provided. In any event,
their ownership of stock, and action to enforce such liability must be
one-third shall descend to the widow or widower free from the pay
commenced within two years and can be maintained only by a Judg
ments of debts. 2. The remainder of which he dies seized, and If
ment creditor of the corporation who shall have begun proceedings
no widower, or widow, the whole, together with all wild lands shal
to obtain such judgment against the corporation during the owner
descend In equal shares to his children, and to the lawful Issue of a
ship of such stock or within one year after Its transfer by such stock
representatlon. If no child Is living at
holder Is reeorded on the corporation books. Directors must be
the time of his death, to all his lineal descendants: equally. If all are
stockholders or members of another corporation which Is a stockholder.
the same degree of kindred; If not, according to the right of repre
If corporation fails for six months to elect directors, court may appoint.
sentation. a. If no such Issue. It descends to his father and mother
Corporations must pay to the State upon organization, a fee as fol
. u3ua£ .£r^8’ t?’
no such Issue, or father. It descends one-half
lows: Where the capital stock Is $10,000 or less, $10; exceeding
to his mother. If no such Issue or mother, it descends one-balf to
510,000 and up through $500,000, $50; above $500,000, $10 for every
bis father. In either case, the remainder, or If no such Issue, father
$100,000 of capital. Other fees for organization are: attorneyor mother, the whole descends In equal sharea to hls brothers and
general’s fee $5, register of deeds $5, secretary of state $5. The
Bisters, and when a brother or sister has died, to hls or her children
annual franchise tax Is as follows: $5 provided authorized capital
or grandchildren by right of representation. 6. If no such Issue,
does not exceed $50,000; exceeding $50,000 and up through $200,000,
father, brother or sister, it descends to hls mother. If no such Issue,
$10: exceeding $200,000 and up through $500,000, $50; exceeding
mother, brother or sister. It descends to hls father. In either case,
£500,000 and up through $1,000,000, $75; and the further sum of
to the exclusion of the Issue of deoeased brothers and sisters. 6. If
tSO ner $1,000,000 or any part thereof In excess of $1,000,000. Cor
no such Issue, father, mother, brother or sister. It descends to hls next
porations which have suspended business temporarily and have been
of kin In equal degree; when they claim through different ancestors,
excused from filing returns of amount of capital stock, etc., are not
to those claiming through a nearer ancestor. In preference to those
liable for franchise tax. Meetings of stockholders must be held within
claiming through an ancestor more remote. 7. When a minor dies
the State. Clerk must be resident and keep stockholders' records In
unmarried, leaving property inherited from either of hls parents. It
the State. His records are open to Inspection by stockholders but
desoends to the other children of the same parent, and the issue of
not by mere creditors. With the exception of banking corporations
those
deceased: in equal shares 11 all are of the same degree of kindred;
no public reports are required except one to the secretary of state
otherwise, according to the right of representation. 8. if the
showing names and residences of officers and amount of capital stock.
Intestate leaves no widower, widow or kindred. It escheats to the
Delivery of certificate of stock to bona fide purchaser or pledgee for
State. An Illegitimate child Is an heir of Its parents who Intermarryvalue together with written transfer of same or written power of
also of Its mother, also of Its father, who adopts It or acknowledges
attorney to sell, assign, and transfer same, signed by owner of cer
it before a magistrate; and In any case where the child Is treated as
tificate. transfers title against all parties. Foreign corporations have
an heir It Inherits from the lineal and collateral kindred of the parent.
practically same rights as domestic, but are required to file copy of
and they from It. (See Wills.)
charter with secretary of state, also a copy of the by-laws, and are
also required under severe penalties to file certificate showing among
Executions Issue after twenty-four hours from rendition of judg
other things the names of officers, amount of capital stock authorized,
ment, returnable In three months, renewable within ten years after.
amount Issued and amount paid in: also must file certificate showing
No stay except by order of court tor cause and one year against absent
any change In above particulars. Such corporations must also appoint
defendants unless bond filed: levied on real estate by appraisal and
a resident of Maine, having an office or a place of business In the
extent, also on real estate and Interests In the same ana franchises
state, to be its attorney on whom process may be served In any legal
and personal property by sale; money and, by consent, circulating
proceeding. Corporations may dispose of their franchises on majority
notes applied directly. Real estate sold on execution may be re
vote of the stockholders: may sue and be sued, and have generally
deemed In one year. Attaching creditor may within forty-eight
hours after notloe redeem personal property of debtor which Is subject
tha powers of individuals. Public service corporations are subject
to mortgage pledge, or lien; may also redeem real estate subject to
to a Public Utilities Commission.
BANKING AND COMMERCIAL LAWS—MARYLAND
mortgage or other lien, Special provisions tor redemption of certain
other special classes of property, such as buildings on leased lands,
franchises, etc.
Exemptions from Attachment and Execution. Homesteads,
not exceeding In value $500. when duly registered: debtor's apparel,
necessary furniture for family, not exceeding In value $100: bed and
bedding for each two persons: family portraits, bibles, school books
in use. State statutes: library. $150: regular pew; cook stove and
Iron warming stoves: charcoal, twelve cords of wood, five tons an
thracite coal, Qfty bushels bituminous coal. $10 worth of lumber
wood, or bark: produce of farms till harvested: barrel of flour, thirty
bushels of corn and grain, potatoes for family, one-half acre of flax
and manufactures therefrom for family; tools of trade, and materials
and stock. $50: sewing machine, $100; pair working cattle, or pair
mules, or one or two horses. $300: hay to keep them: harness for
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 sneep, tnelr wool, their lambs until one year old: hay
to keep them and cattle: plow, cart, truck or express wagon, harrow,
yoke with bows, ring and staple, two chains, mowing machine: fish
ing boat or two tons: debtor may elect If ne nas more than Is exempt.
Life and accident policies are exempt from creditors, except any
excess of $150 per year premium paid within two years, except suits
for necessaries. (See Attachment.)
Foreign Judgment. Action of debt lies on a foreign Judgment
and record of It Is prlma facie evidence of Indebtedness. Is conclusive
except for fraud when given by court having jurisdiction of parties
and subject matter.
Fraud. Usual common law rules as to what constitutes fraud,
fraudulent representations, etc.; also statutory penalties for fraud,
cheats, etc. Court of equity has power to afford relief. Statutory
provisions to prevent sale In bulk of part or whole of stock of mer
chandise In fraud of creditors.
Frauds and Perjuries. No action shall be maintained upon any
contract to charge an executor or administrator upon any
special promise to answer damages out of his own estate: nor t»
charge any person upon any special promise to answer for the debt,
default, or misdoings of another; nor to charge any person upon an
agreement made In consideration of marriage nor to charge any 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 or assignment or Insolvent laws of this State; unless the promise,
contract, or agreement or some memorandum thereof Is In writing
and signed by the party to be charged, or his agent. No action shall
be maintained on a minor's contract unless ratified by him In writing
after becoming twenty-one years of age, except the contract he 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 thereof,
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.
Garnishment. (See Attachment.)
Husband and Wife. Each may hold and deal with property
individually, subject to right of descent In real estate. (See Estates
of Deceased Persons.) Husband not liable for debts of wife con
tracted before marriage, nor afterward In her own name, nor for her
torts. Equity Court has special Jurisdiction of disputes between
husband and wife relating to property. After petition to and decree
by probate court either may convey real property as if sole, and other
Is barred of all right by descent where deserted without just cause
or If actually living apart for just cause, and desertion or living apart
has continued one year.
Interest. Six per cent or any other rate agreed upon In writing;
Judgments, same rate; accounts and debts not on time bear Interest
irom demand. Special rate In time notes does not continue after
maturity, unless so provided; nor after Judgment In any case; ne
usury laws. On loans for less than $200, secured by mortgage or
pledge of personal property, the rate shall not exceed 3 per cent per
month for first three months, and 15 per cent per annum thereafter.
Loans negotiated in this state by agent of non-resident borrower
with intent to evade usury laws of state where borrower resides are
voidable.
Judgments. At law; by general order at end of term on all cases
where verdict or default, unless stayed by proceedings for new trial,
or continued for Judgment by plaintiff; In equity, only by decree
signed by Justice. No 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.)
Limitation of Actions. Six years: debt on unsealed contraot or
liability (except Judgments); actions upon judgments out of State of
court not of record: for arrears of rent; of account, assumpsit, or
case on contract or liability express or implied: waste: trespass qu.
Cl. and d b. a.; replevin: case, except slander and libel. Four years:
against sheriff. Two years: assault and battery, false Imprisonment,
slander, libel and penalty. One year: escape, scire facias and on
recognizance. Eighteen months: stolen bonds and coupons, except
by owner. Twenty years: witnessed notes, baDk 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 parties lived are baned here. New
promise must be In writing or part payment must be made, to extend
time Against executors and administrators, twenty months after
filing or 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.
Limited Partnership. 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 Hable for debts
beyond that amount. General partners must transact the business
Married Women have same rights and liabilities as to property
contracts and all suits as men. Wife's property not liable for her
husband's debts, nor his liable for her prior debts nor for others made
on her credit. She may sue and be sued as If sole. May not be
partner of husband and not liable for family expense except by express
promise. (See Arrest, also Dower, also Estates of Deceased Persona,
also Husband and Wife.)
Mortgages. Of real estate' executed and acknowledged as deeds
and must be recorded as to third parties; convey fee with condition
of defeasance. Foreclosed without possession by serving or 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 muon used.
114
1781
Supreme court may authorize a mortgage by a person In possession
of an estate sublect to a contingent remainder, executory devise, or
power of appointment, and such mortgage Is binding on all parties.
f naliel niorlkages u iless anti until possession tasen 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 of 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 of loan, interest
rate, and cost of procuring loan. Agreements, whether in form of
note, lease, conditional sale, etc., or otherwise, that chattels bargained
and delivered shall remain property of seller till paid for, must be in
writing and recorded as chattel mortgages; such mortgages and notes
foreclosed by sixty days' notice to mortgagor or assignee of record,
or, If out or State, by publication; redemption in sixty days. Col
laterals pledged on notes, etc., or for the performance of anything,
after failure to pay or perform by the pledgor, may be sold by the
pledgee, he first giving written notice to the pledgor of the proposed
sale, or If his residence is unknown, by publication of notice once a
week for three successive weeks in a newspaper in the city or town
where the pledgee resides, recording said notice and affidavit of service
of same in the clerk’s office of city or town where the pledgee resides,
and after the expiration of the sixty days from the time of said record
ing.
Negotiable Instruments. Days of grace abolished except as to
sight drafts. Falling due on Sunday or bank holiday payable and
resentable for payment on secular or business day next succeeding,
f 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 18;
May 30; July 4; first Monday In September; Thanksgiving: Christmas,
and Arbor Day. If note reads "I promise to pay” all signers are
Jointly and severally liable.
Partnership. Personal property of partnership, or interest of
partner therein, exempt from attachment on mesne process, or seizure
on execution for any individual liability 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
nature of business and partnership name. (See Limited
?artners,
’artnership.)
F
Powers of Attorney. Usual common law rales.
Probate Law. (See Estates of Deceased Persons.)
Protest. (See Negotiable Instruments.)
Replevin. Goods or chattels wrongfully taken or detained may
be replevied by owner or party entitled to possession. Replevin bond
must be double the value of property replevied. It dismissed with
out trial, suit may be brought on the Dond, in which suit title may be
shown to mitigate damages.
Taxes may be collected by arrest, distress, or suit. On real estate
they are a lien' proceedings to enforce by sale begin upon non-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
on whole sum of tax and costs. Land on which taxes are unpaid,
sold on first Monday In February In year succeeding the year in which
tax was assessed: sale Is ot smallest fractional part of Interest to one
who will pay taxes. Interest, and costa therefor. State tax assessed
by board of state assessors on gross receipts of railroads and express
companies, and telegraph ana 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
pay annual license tee of $10. Inheritance tax ranging from 1 to 7
per cent, according to degree of relationship and amount of tiequest.
$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
Banka.)
Mages. Weekly payment required in most industries. (See
Assignments, Attachment.)
Warehouse Receipts. Holder deemed true owner ao 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 aa
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
aa 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 hla
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 thl*
State (at his domicile!, may be allowed In any county here where he
has property. Widow or widower may within six months waive
provision In will of deceased husband or wife and claim same share
In personal property as would have bad In case deceased died intestate.
(But <ee Husband and Wife.)
Nuncupative will must be reduced to writing within six days, or
by testimony within six months, from time words spoken.
Rroved
o letters In such till fourteen days after decease of testator. Not
effectual to dispose of more than $100.00 worth of property unless
proved by three witnesses who acted at testator's request.
SYNOPSIS OF
THE LAWS OF MARYLAND
RELATING TO
BANKING AND COMMERCIAL USAGES
Attorney at Law, Baltimore.
(See Card in Attorneys’ List.)
In general. Bagby's Annotated Code (1911) and Supplemen
tary Volume (1914) embrace the Public General Laws of Maryland.
Including those of the 1914 session. By statute, the Code of 1911
Revised by T.
Howard Embert,
1782
BANKING AND COMMERCIAL LAWS—MAR YLAND
has been made evidence: special reference to statutes in the follow
ing is therefore unnecessary.
Acknowledgments 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 tbe 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 of the
officer or court to be affixed to the certificate of acknowledgment
In all cases. If acknowledged without the United Slates, tbe acknowl
edgment may be made before any minister, consul general, vice or
oonsular agent or deputy, or a notary public, or a commissioner to
take acknowledgments for State of Maryland. No separate examin
ation of a married woman is required. Defective acknowledgments
cured. (See Conveyances.)
Actions. The forms ot actions, which still savor of tbe common
law are now very simple, any plain statement of facts constituting
a good cause of action being sufficient. Amendment Is allowed at
any time before verdict. Equitable defenses are now allowed
to be made In a court of law, although there are still law courts and
equity courts having different and distinct jurisdiction. Speedy
judgment Acts are in force in Baltimore City and in many of the
Counties. (See Suits.)
Administration of Estates. The orphans' court of the counties
and the orphans’ court of Baltimore city are the courts of probate.
In cases where decedent left a will, letters are granted to executor
and executrix named in the will. In granting letters of administra
tion, where decedent died without leaving will, letters are granted:
1. To widow or child or children; 2. Grandchild; 3. Father; 4.
Brothers and sisters; 5. Mother; 6. Next of kin; 7. Largest creditor
applying for letters. In each class, males are preferred to females.
Bond Is required with two sureties, or one of certain local surety
companies where authorized by their charter to act as sole surety.
When testator requests In will that executor be excused from giving
bond, court only requires nominal bond for amount sufficient to pay
estimated debts. Six months notice to creditors must be given by
publication before estate Is distributed. Personal property must be
appraised, accounted for 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. By Aot of 1806,
Ch. ^46, above provisions were mado 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.
Affidavits.
(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 fiaes of
mortgage consideration; and the payment of tax on annual Interest
In certain counties. (See Mortgages.)
Allens. Allens, not enemies, may take and hold lands, tenements,
and hereditaments acquired by purchase, or to which they would.
If citizens, be entitled by descent, and may sell, devise, or dispose
of the same or transmit the same to their heirs as fully and effectually
and In the Same manner as If by birth they were citizens of this State.
Arbitration. Disputes between parties may be conducted by
any Judge or Justice ot the peace mutually agreed upon. Special
agreements for arbitration of such disputes to be valid. Parties may
be represented by an attorney, and award of arbitrator or arbitrators
to be a ludgment, and court may give judgment and Issue execution
on the award. Act 1004, Ch. 671. provides a means for the settlement
of disputes between employers and employees by mediation or volun
tary arbitration.
Arrest. No arrest for debts in this State. In criminal cases a
sentence may be passed. Imposing a sum of money as a fine, ana
then In lieu of payment by party, of fine Imposed, he Is Hable to
imprisonment.
Attachments for debt (See Act 1890. Chap. 549), or for unliqui
dated damages, either In contract or tort, can be obtained In all
cases when the defendant is a non-resident or has absconded, affidavit
being first made by the plaintiff to the correctness of his claim and
the fact that the defenaant Is a nou-resldent or has absconded. They
may be also obtained In connection with an original process when
the creditor or some one In his behalf shall give bond In double the
amount of the debt, tvlth sureties to be approved by the clerk, and
make affidavit before the clerk of the court where the suit Is brought
that the defendant Is bona fide Indebted to the plaintiff In the sum
claimed, and that the plaintiff knows or has good reason to believe
that the debtor has absconded or Is about to abscond from the ^tate.
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 hut
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 Dlalntltf's own hands or In the hands of any
one else may be attached. There is a special provision for capital
stock of a corporation. The certificate itself must be seized. Credits
not due mav be attached, but wages, hire, or salary not due can
not be attached, and 90 per cent of wages, hire, or salary due shall
always be exempt. (Act 1908, Ch. 665.) Imprisonment for debt
is abolished. Defendant, may be sued wherever be does business.
In addition to attachments against non-residents or absconding debtors
for debt (I. e.. a liquidated sum), as heretofore, attachments may
now be Issued against such debtors In cases arising from contracts
when the damages are unliquidated, and In actions for wrongs 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.)
Banks. The Act of 1910. as amended by the Acts of 1912 and
1914 made important changes in the banking laws of this State.
The 'law now provides for the appointment of a Bank Commissioner
with broad powers for the examination of all banking institutions
in this State other than National Banks and an annual report thereon
to the Governor. Whenever capital is reduced by impairment
commissioner may require Bank to make such deficiency good wit hin
sixty cfhys, and upon failure to do so may take possession of property
and business of 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 of such institutions are fully set forth in the
act. This act also provides for the incorporation and supervision
by the State of saving institutions and trust companies Chattel
loan companies are required to take out a license, pay a fee where
the loan is $300 or more, and Inspected by the State Banking Depart
ment.
Collaterals. The conversion by any banker, broker, merchant,
attorney, or agent of collaterals is made a misdemeanor. (See Code.
Art. 27. Sec. 93.)
Contracts. The normal condition of all persons la one In which
they are capable of making any contract. The fourth and seventeenth
sections of the Statute of Frauds are In force In Maryland. Acts 1900.
Ch. 362, make it no longer necessary to show that the consideration
for a promise to answer for the debt of another Is In writing. A
citizen can Dot make a contract with an alien enemy during the
oonttnuanoe of hostilities; hut aliens, not enemies, may contract and
hold real property as fully as citizens. The later cases decide contract
of Infants to he voidable and not void; and they are capable of
ratification by Infants on arrival at age of twenty-one. The contracts
of Infants for necessaries are binding upon them. The contract of
a lunatic Is voidable and not void.
The statute provides that a
married woman may engage In business, contract, sue. and he sued
upon contracts and tons, as If unmarried, (Acts 1898, Ch. 457.)
All gambling contracts and contracts made on Sunday are void.
Conveyances. No estate or title to any property lying with
in this State, for any period above seven years, Bball pass or take
effect unless the deed conveying the same shall be executed, acknowl
edged, and recorded. (See Code. Art. 21. Sec. 1.) Every aeed
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
from date. In county or Baltimore ( Ity, where land lies, but If recorded
.liter 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 comorate net of said
corporation or have It acknowledged by the President or Vice-Presi
dent without such appointment. Vendors' lien may be released In
original deed or upon records where recorded. (Code Art. 66, Sec. 31).
Conveyances de cctively executed made valid by Acts 1908, Ch. 105
and Acts 1914, Ch. 259 and Ch. 421.
Corporations are organized under the authority of the General
Incorporation Law, completely revised. Act 1908, Chap. 240. Liberal
provisions are made for general Incorporation: only exception (for
municipal purposes) Is In the constitution. All corporations 'under
the general lawi 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 of 1 per cent on the excess to $5,000,000, etc. Section
91) of Article 81 of Code, amended by providing for annulment of
Charter for non-payment of taxes. Domest ic corporations may issue
all kinds of preferred and common stock, and exchange same for stock
or good will. Valuation in absence of fraud Is conclusive. As to
Stock certificates, see “Uniform Laws.”
Law amended by Chapter 596. Acts of 1916.
Chapter 318. Acts of 1918. provides that all corporations who shall
refuse or neglect to pay franchise tax or tax on capital stock for a
period of two years, the charter is annulled and forfeited.
Any corporation chartered by this state, which for a period of 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 tinder the laws of this state prior to June. 1916, and
have at least one Director, who is a citizen of this s<,ate. actually resid
ing therein.
Courts. Terms and Jurisdiction. The circuit courts In the
counties have Jurlcdlctlon at common law In cases Involving more
than $50, and equity In all cases Involving more than S20. They
hold from two to four regular terms In each county at which
they have a jury; there are, however. Intermediate terms (lxetl by
the rules, to which process may be made returnable. The circuit
oourt and clicuit court No. 2 of Baltimore city have exclusive equity
Jurisdiction In the city. The superior court, the court ol 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 cuurtB have six terms
In the year, beginning the first Mondays of January. March, May,
July, September, and November.
Depositions. When the courts are satisfied, by affidavit or
otherwise, that there are material and competent witnesses residing
without the State, they will direct that a commission he 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 Rtate 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 crosR-lnterrogatortes annexed to the commlRslon. Testimony of non-resident
witnesses can also be taken upon proper notice, as provided by See.
17 of Art. 35 of the Code
Descent and Distribution of Property. 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.
Dower. The common-law right of dower exists In Maryland, and
extends to equitable estates. By act 1898, the husband's dower
was created: an estate of the husband In his wife's estates of lnheri-
BANKING AND COMMERCIAL LAWS—MARYLAND
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 of administration on the estate of the deceased husband or wife,
the dower right and the share of personal property remain undisturbed.
(See Married Women.)
Executions may Issue and Judgments may be renewed or revived
by scire facias at any time within twelve years from date of Judgment
or from the expiration of any stay, and may be thereafter levied
on any property of the defendant. In the circuit courts for the
counties there Is a stay until the first Thursday of the term succeeding
the rendition of the judgment, provided the judgment Is obtained
at the second term after the defendant is summoned. There Is no
stay upon Judments rendered in the courts of Baltimore city or by
Justices of the peace in the city or counties, but execution may Issue
forthwith. The defendant may stay the execution by superseding
with sureties for six months. Copy of docket entries of Judgment
when recorded In another county makes the Judgment a lien there.
(Act 1890. Ch. 314.)
Exemptions. No homestead law. Wearing apparel, books and
tools (not kept for sale) and $100 of property in addition, whether
same consists of money, land, goods, or money payable as Insurance,
benefit, or relief In the event of sickness, hurt, accident, or death,
are exempt from execution, except on Judgments for breach of promise
to murry and seduction, not applicable to any but actual bona
fide residents of this State. Equitable Interests in personal property
can not be sold under execution, but may be levied upon, and the
lien thus acquired may be enforced In equity. Choses In action may
be attached.
Foreign Corporations.
(See* Corporations.)
Foreign Judgments. Judgments of the courts of other states
certified under the act of congress, are proper causes of action against
any person subject to the process of the courts of this State.
Fraud. When any false representation Is made by one to another
with the Intent to defraud, and the defrauded party, thinking the
alleged fraud to be true, acts upon It. any contract thus made can
not be enforced. But if the Injured party knows such representations
to be false. It can not be said to have Influenced his conduct. For
general doctrine In this State see McAleer vs Horsev 35 Md. 439.
Giving checks or drafts without provision for acceptance is prima
facio evidence of 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
or all creditors with amount of indebtedness at least five days nerore
the sale is consummated. The vendee at least five days before
consummating such sale shall notify all of said creditors either per
sonally or by registered mail of such proposed purchase. A sale
or transfer of goods in bulk without such notice shall as to all sub
sisting creditors of ohe vendors be void.
Chanter .370, Acts of 1010, adds additional section to Article 27 of
Bagby’s Code and provides that if any person shall make, or cause to
be made, either directly or indirectly, through any agency, whatsoever,
any false statement as to his financial condition for the purpose of
procuring the delivery of personal property, etc., shall be guilty of a
misdemeanor and be fined not more than $1,000, or imprisonment for
one year.
Chapter 371, of the Acts of 1916 adds new section 831 of Bagby’s
Code and provides that any vendor of stock of goods who shall know
ingly and willlingly make or deliver any statement of which any
material portion is false, shall be guilty of a misdemeanor and upon
conviction slia.ll be fined $1,000, or imprisonment for one year.
Garnishments. (See Attachments.)
Husband and Wife. (See Dower. Divorce, and Married Women.)
In this State the husband Is not liable for wife’s ante-nuptial debts
or contracts. Husband is liable for necessaries of wife. Acts 1898
Ch. 457, gives husband same interest in wife's estate as wife has Id
husband's estate. Married women are expressly authorized tty 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
separate deed, or by agent or attorney properly constituted.
The wife's property is protected by the Constitution from the debts
of 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 chuttels lent, and legal Interest thereon. Since 1876. where the
whole debt. Including the usury, is paid, the usurious interest cad
not bo recovered back. Since September 1st. 1914, judgments
bear interest rrom the date of the verdict.
Judgments are liens for twelve years from date of rendition on
any Interest of the defendant In real or leasehold property within
the county where rendered. They can be transferred from one county
to another by sending a copy of the docket entries to the clerk for
record. The lien commences from the date of the entry of the docket
entries by the clerk. Judgments are not liens on mortgages. Judg
ments are not liens on personal property until execution has Issued
and the writ Is in the hands of the sherlfl. (See Act 1890, Chap.
558. as to examination of Judgment debtors.) (See Suits.)
Liens. (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 subiect in like manner
as buildings are to a lien according to (he provisions of (’ode I88»,
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.
Garages by Act 1918 given lien for storage and accessories. 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 tlie superior court for Baltimore City, or in the circuit court for
the county. The liens are enforced by scire facias or by bill in equity.
Section 53 B, Bagby’s (’ode, amended by ( hapter 355. Acts of 1916.
entitled " Additional Contracts " Every note. sale, or contract for
sale of goods and chattels wherein the title thereto, or lien thereon is
reserved until the same be paid in w hole 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
of Baltimore City, or the counties, and such recording shall be suffi
cient to give actual, or constructive notice to third parties.
Limitations of Suits. 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 by the statute.
Married Women. Act of 1898, Chap. 457, Code Art. 45, repeals
and re-enacts the entire law in this State. Married women may
hold and dispose of their property lawfully as if unmarried, but
husband must join In conveyances of real estate to release his in
1783
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 of the personal estate if there are children, and if no
children, one-half of the personal estate; husband has same rights
in wife's property as wife has in husba.nd'3 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
MortgaKes are executed, acknowledged, nnd 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 hl»
agent at any time before recording, that the consideration is true and
bona tide, aud. in the lour Counties mentioned bolow, 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 of any mortgage except for the purpose of foreclosure, a like
affidavit must be made by the assignee. If made by agent, he must,
in addition, make oath that be is the agent of the mortgagee. A
like affidavit is required to chattel mortgages, and absolute bills
of sale, both of which must be recorded within twenty days. The
lien of a mortgage may, by ceasing to pay interest or ar.y install
ment of the principal for twenty years, be barred. They may be
foreclosed at any time after the debt becomes due and before the
lien is barred. Mortgagees are required to pay a tax of 8 per cent
on the interest covenanted to be paid in the mortgage, in Somerset.
Montgomery, Frederick, and Dorchester counties. No tax in Balti
more City and other counties. (Code Art. 81, Ch. 187.)
Notes and Bills of Exchange. 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 reasonable
certainty.” Its negotiability is not affected by a seal, or by a provision
which authorizes the sale of collateral securities In case the Instrument
be not paid at maturity, or authorizes a confession ot Judgment If
the Instrument be not paid at maturity; or waives the benefit of any
law intended for the advantage or the protection of the obligor- or
gives the holder an election to require something to be done In lieu
of payment of money. It Is not necessary that paper should be
made payable at a bank or any fixed place. To charge Indorser,
notice of non-payment must at once be given to him. The time
of maturity is regulated by Art. 13. as follows: “Section 104. Time
of Maturity. Every negotiable Instrument Is payable at the time
fixed therein without grace. When the day of maturity falls upon
Sunday, or a holiday, the instrument is payanle on the next succeeding
business day. Instruments falling due on Saturday are to be presentea
for payment on the next succeeding business day. except that Instru
ments payable on demand may, at the option of the holaer. be pre
sented for payment before 12 o’clock noon, on Saturday, when that
entire day Is not a holiday.” Legal holidays are: Christmas,
New Year's Day, February 22. Good Friday. July 4. May 30. 1st
Monday in September, 12th day of September, and the 12th day of
October, all days of general and congressional elections throughout
the State and any day of public thanksgiving or humiliation and
prayer proclaimed by the governor or legislature, and all Saturdays
after 12 o’clock noon are legal half holidays. Monday Is treated
as Sunday when immediately preceded by one of the holidays afore
said. By act 1898, Ch. 198, it shall be lawful for hanks and bankers
In the city of Baltimore to close their doors for business at 12 o'clock
noon, on each and every Saturday in the year, and every Saturday
in the year, after 12 o'clock noon, shall be a legal half-holiday, so
far as regards the presenting for payment or acceptance, and the
protesting and giving notice of the dishonor, of Dills of exchange
and other negotiable paper, and for these purposes shall be considered
*\s nu ,st da,y °f tlle week, or Sunday and all negotiable paper
shall be deemed to be presentable on the secular day next succeeding.
Bagby s < ode amended by Chapter 355. Acts of 1916. Notes
wherein reservation of title i« embodied must be recorded in the
( Jerk s office of Baltimore City or in the counties.
Power of Attorney, Every power of attorney authorizing an
agent or attorney to sell and convey any real estate, shall he attested
and acknowledged In tlie same manner as a deed, anil 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
Is recorded In the office In which the deed should properly be recorded.
Probate Law. (See Administration of Estates and Wills.)
Protest Is usually made by notary public. Notary must keep
register of protests A protest of notary public Is prtma facie evidence
of non-acceptance or non-payment, and of the presentment of said
note for payment, or of said bill for acceptance or payment, at the
time and in the manner stated In the protest, and the protest shall
also lie prima facie evidence that such notice has been sent or deliveied
In the manner therein stated. (See Notes and Bills of Exchange.)
Replevin Is a remedy to recover specific goods and chattels to
whose possession the plaintiff is entitled. Also the proper remedy
to recover possession of goods distrained unlawfully. Bond must be
given to the State of Maryland, and any party having an interest
In the property, may. upon breuch of any covenant In bond, maintain
an action In the name of the State for his or her use.
Sales <fe Notices. Act 1910, Ch. 346. provides a Uniform Rales 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 any 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 of 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 Munic
ipal taxation in Baltimore City and in some of the Counties, and
beginning with 1915, from State taxation. Collectors may sell
property to compel payment of overdue taxes, upon giving due notice
of sale, and complying with other requisites of statute, ami any persou
Interested in property may redeem within twelve calendar months
from date, and in default of redemption, title to property vests in
purchaser. Taxes are considered in arrears on first day of January
next succeeding the date of their levy, and bear interest from that date.
“Uniform State Laws” 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 of Foreign Wills. (7) Uniform Bad Check Act, provides
that drawers shall be given ten days notice to make good check,
before prosecution.
1784
BANKING AND COMMERCIAL LAWS—MASSACHUSETTS
Certificates of capital stock, bills of lading, and warehouse re
ceipts, 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 presenoe, at his request, and witnessed by two or more credible
witnesses, as and for last will and testament of the testator, in Hie
presence of all tne witnesses thereto. Nuncupative wills invalid
except in case of disposition of personal oroperty by soldiers and
marinas 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 of the testator's domicile, or
according to the forms required by the law of this State shall be
deemed to be -legally executed, and shall be of the same force and
effect as if executed in the mode prescribed by the law of this State,
rovided, said last will and testament is in writing and subscribed
y the testator; and if the testator was originally domiciled in Mary
land, although at the time of making the will or at the time of 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 of this State; and when so admitted shall be governed
by and construed and interpreted according to the law of Maryland,
without regard to the lex domicilii, unless the testator shall expressly
declare a contrary intention in said will or testamentary instrument.
Code Art. 93, Ch. 334. No will, testament, codicil, or other ttstamentary paper shall be subject to caveat or other objection to its
validity after the expiration of three years from its probate. (Acts
1894, Ch. 405 ) When a person is unheard of 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 of admin
istration as the case may be.
Workmen's Compensation. By the Act of 1914, Chapter 800,
provision is made for the insurance by employers of 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 of 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.
SYNOPSIS OF
THE LAWS OF MASSACHUSETTS
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised January 1, 1920, by Raymond T. Pakke, Attorney at Law.
Boston. Mass. (See Card in Attorneys' List.)
The next Legislature convenes January 7, 1920.
Accounts. Ex parte affidavit on claims and accounts is of no
value. They must be established by evidence produced in court
after suit brought either by testimony or deposition.
Acknowledgments and Deeds. 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 district 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 of such officer
to take acknowledgments and as to the genuineness of bis signature
In deeds where there Is more than one grantor, the acknowledgment
of one of them is sufficient. Official taking acknowledgment should
state date of expiration of his commission. .
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 tbe county In which tbe
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. Husband and wife may
make conveyances of real estate to each other except by way of
mortgage, as if unmarried; but no such conveyance snail have any
effect, either in passing title or otherwise, until the deed describing
the property to be transferred is duly acknowledged and recorded in
the registry of deeds for the district where the land lies. Any interest
in real estate may be transferred by a person to himself jointly with
another person or persons In the same manner in which it might be
transferred by him to another person. No interest in land except
an estate at will can be created except by instrument in writing or by
operation If law.
Actions. There are three classes of actions: contract, tort, and
replevin. Actions at law are begun by writs issued In blank form by the
clerks of the several courts. No declaration need be Inserted In the
writ, except In cases of arrest on mesne process or of an attachment
of a vessel. Suits In equity are begun by filing a bill upon which a
subpoena Is Issued by the clerk of the court. Actions begun by
trustee process must be brought In the county In which the trustee
or one of them resides or has his usual place of business.
Administration of Estates. Administration or probate is to be
taken out in county where deceased last resided. Executors or admin
istrators are required to give a bond of about double the value of the
personal estate. An executor will be exempt from giving sureties if tes
tator so directs. An administrator will be exempt if all persons inter
ested 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 eacn county to whom administration Is granted upon
estates of persons who die Intestate leaving property, and not having
any husband, widow, or heir in this State. Ancillary administration
may be granted upon the estate of a non-reslaent 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 of the appointment. No suit can be brought by a creditor
against an executor or administrator within six months after his
giving bond, except on a claim not affected by the insolvency of the
estate. No suit can be brought against an executor or administrator
who has published notice of his appointment, after one year from
time of 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 of claims, or the Court mav receive and act upon the
claims. Claims for funeral expenses, last sickness, and charges of
administration, are not affected by the insolvency of the estate.
Executors and administrators shall render an account at least once
a year.
Allens. 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 of tort, against women as well as men, except for
slander or libel, may be begun by arrest of the defendant, on the
plaintiff or some one in his behalf making certain affidavits. A 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 lie is released from
arrest. No arrest can be made if the property of defendant is attached
upon the same writ. On an execution, except for costs, or for ali
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 arreRt.
When arrested on execution the debtor may apply to take the oath
for relief of poor debtors.
Assignments 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 of fraud. If there is property in excess of
the claims of creditors who have assented, the excess in hands of the
trustee can be reached by trustee process.
Insolvency. There is an insolvent law. but it is superseded hy the
National Bankruptcy Act of 1898. As to insolvent estates of deceased
persons, see Administration of Estates.
Attachment. 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 cannot be attached except by bill In equity. Attachment
of shares of stock is not valid against a bona fide t ransfer, although
not recorded in book of corporation. Debtor may dissolve attachment
by furnishing bond with sureties to pay judgment obtained or value of
property attached determined by appraisement. Debtor against
whom judgment is rendered for over $20 may be subjected to sworn
examination touching his property, and if ho 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 property after notice to creditor. An
attachment is dissolved by death of the defendant if administration
Is granted upon his estate upon application made within one year
after his death.
Banks. In this State, safe deposit, loan and trust companies are
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 of carrying
on the business of banking. The general court may, by special act,
annul or dissolve any such corporation; but Its dissolution shall not
Impair any remedy against the same for liability previously Incurred.
The capital stock of each 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 of the par value of $100.00 each. No business shall be trans
acted until the whole amount of its capital stock is actually paid In.
Before commencing business the president and directors shall make a
certificate specifying the corporate name, which shall be different
from any previously organized in the commonwealth: the location
of said bank; the amount and number of shares of its capital stock;
name and residence and number of shares of each stockholder, and
the time when it is to go into operation; a copy of which certificate
shall be filed with the secretary of the commonwealth. No part
or the capital stock can be sold or transferred until the whole amount
thereof is paid up. No person can hold more than half the capital
stock, exclusive of that held as security. In addition to the capital
stock to which a bank is entitled, the commonwealth may subscribe
thereto an amount not exceeding 50 per cent of its authorized capital,
when provision is made therefor by law. Said commonwealth shall
be entitled to its proportionate share of profits and dividends. Upon
the vote of three-fourths of its stockholders, a bank may increase its
capital stock to an amount not exceeding $1,000,000. The cashier
is required to give bond in not less than $20,000, with two or more
sureties, before entering upon his duties. The debts of a bank shall
at no time exceed twice the amount of capital stock paid in exclusive
of deposits not bearing interest, nor shall there be due the bank more
than double the amount of capital stock paid in. Every bank is
required to keep a reserve in lawful money of the United States, equal
to 15 per cent of its liability for circulation and deposits in City of
Boston. Trust companies doing business in the City of Boston shall
keep a reserve equal to 20 ner 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.
By General Acts 1919 c. 350 the offices of bank commissioner,
supervisor of Ioan agencies, and of insurance commissioner are abol
ished, and their duties are to be performed under a newly constituted
department of banking and insurance established by this act. This
department is divided into divisions under commissioners, known as
commissioner of banks, commissioner of insurance, and commissioner
of savings bank life insurance. This act contains extensive admin
istrative provisions.
Bills and Notes. The law of negotiable instruments is governed
by the Negoriable Unstruments Law, as amended, where applicable;
in other cases by the law merchant. A person becoming a party
to a non-negotiable promissory note payable on time, by signature
in blank on the back thereof, is entitled to notice of non-nayment
same as an indorser. A depositary of funds, subject to withdrawal by
check or demand draft may pay a cneek or demand draft drawn on
BANKING AND COMMERCIAL LAWS—MASSACHUSETTS
it by a depositor having funds on deposit to pay same, notwithstanding
his death, upon presentation within ten days after its date.
Protest of bill, note or order duly certified by notary public under
his hand and official seal is prima facie evidence of facts, stated in
such protest and of giving notice to drawer or indorser.
There are various statutory provisions bearing upon the validity
of the notes of municipalities of this Commonwealth. Where a nego
tiable instrument is not payable on demand presentment must be
made on the day it falls due. Where it is payable on demand present
ment must be made within a reasonable time after its issue.
An accommodation party to a negotiable instrument is liable thereon
to a holder in due course notwithstanding such holder at the time of
taking the instrument knew him to be only an accommodation party.
When the day. or the last day, for the performance of any act, includ
ing the making of any payment or tender of payment, authorized or
required by statute or by contract falls on Sunday or on a legal holi
day, the act may be performed on the next succeeding secular or busi
ness’ day. unless it is specifically authorized or required to be performed
in Sunday or on a legal holiday.
Every negotiable instrument is payable at the time fixed therein
without grace, except that three days of grace shall be allowed upon a
draft or bill of exchange made payable within Massachusetts at sight
unless there is an express stipulation to the contrary. Where the day,
of maturity falls upon Saturday, Sunday, or a holiday, instrument is
payable on next succeeding business day which is not a Saturday.
Instruments payable on demand may, at option of holder, be presented
for payment before twelve o’clock noon on Saturday when that entire
day is not a holiday; provided however that no person receiving any
check, draft, bill of exchange or promissory note payable on demand,
shall be deemed guilty of any neglect or omission of duty or incur
any liability, for not presenting for payment or acceptance or collec
tion such check, draft, bill of exchange, or promissory note on a
Saturday provided also that the same shall be duly presented for
payment, acceptance, or collection on the next succeeding business
day.
Under certain circumstances the original named payee of order
paper may be a holder in due course.
No bank shall be liable to a depositor, or to the drawer of a bill of
exchange upon the bank, for an amount charged to or collected from
him on account of payment by such bank of a negotiable instrument
upon which the signature of any party is forged, or which is made,
drawn, accepted or indorsed without authority, or which is materially
altered or the amount of which is raised; unless within one year after
return of such negotiable instrument to such depositor or drawer,
he shall notify the bank in writing that, as the case may be, the instru
ment was made, drawn accepted or indorsed without authority, that
signature of a party to instrument is forged, or that instrument has
been materially altered, or that the amount has been raised.
Bills of Lading. The so-called Uniform Bills of Lading Act is in
force, and has been held constitutional by the Supreme Judicial
Court. A bill in which it is stated that the goods are consigned or
destined to a specified person is a non-negotiable or straight bill. A
bill in which it is stated that the goods are consigned or destined to
the order of any person named in such bill is a negotiable or order bill.,
A non-negotiable bill cannot be negotiated, and indorsement of such
a bill gives transferee no additional right. A negotiable bill may bo
negotiated by indorsement of person to whose order goods are deliv
erable by tenor of bill. Such indorsement may be in blank or to a
specified person. If indorsed to a specified person it may be nego
tiated again by the indorsement of such person in blank or to another
specified person. Subsequent negotiation may be made in like man
ner. A negotiable bill may be negotiated by any person in possession
of same, however such possession may have been acquired if, by the
terms of the bill, the carrier undertakes to deliver the goods to the
order of such person, or if at time of negotiation bill is in such form
that it may be negotiated by delivery. Indorsement of bill does not
make indorser liable for any failure on part of carrier or previous in
dorsers of the bill to fulfil their respective obligations. Any pro
vision inn an order bill that it is non-negotiable shall be void.
Bills of Sale. A bill of sale of personal property intended fo-security must be recorded, the recording provisions as to mortgages of
personal property being applicable. See Chattel Mortgages.
Chattel Mortgages. Chattel mortgages must be recorded in the
records of the city or town where the mortgagor resides when the
mortgage Is made, and In the city In which he then transacts business,
every mortgage must be recorded within fifteen days of the date
until recorded the mortgage Is not valid except between the parties
and record subsequent to time limited is void. If mortgage is given
by non-resident mortgagor, record must be made in city or town where
property then is. If rocord in two places is required, and mortgage
is recorded in one place within fifteen days, it may be recorded in
other place within ten days after date of first record.
Conditional Sales. If a contract for sale of personal property
is made on condition that title shall not pass until purchase money
has been fully paid, and vendor upon default takes possession of prop
erty, the vendee may within fifteen days after such taking redeem the
property so taken by paying to vendor the full amount then unpaid
with interest and all lawful charges and expenses due to vendor.
There are special statutory provisions affecting conditional sales of
furniture or other household effects.
By statute no conditional sale of heating apparatus, plumbing goods,
ranges or other articles of personal property which are afterwards
wrought into or attached to real estate, whether fixtures at common
law or not, shall be valid against any mortgagee, purchaser or grantee
of such real estate unless not later than ten days after delivery thereon
of such personal property a notice in form prescribed by statute is
recorded in registry of deeds of district where land lies. Statute also
applies to registered land.
. ..
....
, ,
. , ,
In the ordinary case, contracts of conditional sale need not be re
corded Selling or concealing personal property held by vendee
under a written conditional contract of sale, before performance of
condition and with intent to defraud, is a criminal offense.
Corporations. By special act of 1003, chapter 43 z, the law of busi
ness corporations was revised and as amended applies to all corpora
tions organized in this commonwealth for the purpose of carrying on
business within the commonwealth for profit, except the following;
Banks, savings banks, co-operative hanks, 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, or to exercise franchises in public ways, pro
vided that corporations formed for purpose of dealing in real estate
shall state the term of the duration of the corporation, such term not
to exceed fifty years.
Under this act three or more persons may associate together and
torm 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 ot association with the commissioner of corporations
1785
and on payment of a fee of one-twentieth of 1 per oent 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 stockholder*.
The president Is chosen by and from the board of directors. The
clerk must he 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 mouths 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
statement under oath by an auditor. It Is also required to make
an annual return to the tax commissioner.
Every foreign corporation which has a usual place of business
here, or Is engaged here permanently or temporarily In the ooBstmo
tion, erection, alteration or repair of a building, bridge, railroad, rail
way or structure of any kind, shall before doing business here appoint
the commissioner of corporations, Its attorney for the service of proc
ess, such authority to continue as long as any liability remains out
standing against It In this commonwealth: and shall file with the
commissioner of corporations a copy of its charter, articles or certifi
cate of incorporation, by-laws, and a certificate setting forth 1*8
name, location, names and addresses of its officers, date of its annual
meeting, amount of its capital stock authorized and issued, the num
ber and par value of its shares, the amount paid thereon, and details
of any payment thereof not made in money. They are required
to file annual statements with the commissioner of corporations
showing their condition.
Courts. Terms and Jurisdiction. Trial Justices may severally
hold courts within the counties for which they are appointed, and
shall have original Jurisdiction, exclusive of the superior court, of all
actions of contract, tort, or replevin, where the debt or damages
demanded or value of the property alleged to be detained does not
exceed $100, and concurrent Jurisdiction with the superior court of
such actions where such amount exceeds $100 and is less than $300.
Police and district courts may in their respective counties have original
jurisdiction, exclusive of the Superior Court, of 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 of the property alleged to he 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 by the probate court, and determine questions arising under
wills. Superior court has jurisdiction where the amount claimed ex
ceeds $20. Municipal court of 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,.provlded one or more of the
defendants resides or has hls usual place of business in the county of
Suffolk. The Land Court has exclusive original jurisdiction for regis
tering titles to real estate under the Torrens system.
The Probate Courts have jurisdiction over administration of estates
of deceased persons, matters of adoption, guardianship, conserva
torship, trusts under wills and written instruments, petitions for
separate support, and of partition of land. There is a Probate Court
and Registry of Probate in each county.
Equity jurisdiction is lodged in the Superior Oourt and in Supreme
Judicial Court.
Depositions. Taking of such is governed by statute and rules of
courts. The commission issued to take depositions contains full
instructions to magistrate how to proceed.
Descent and Distribution of Property of Decedents. After
deducting widow’s allowance and allowances for minor children,
and payment of debts and expenses of administration, the remaining
personal and real estate is distributed as follows: If deceased leaves
no issue, surviving husband or widow shall take $5,00!) and one-half
of remaining real and personal property. If deceased leaves issue,
surviving husband or widow shall take one-third of remaining real and
personal property. If deceased leaves no kindred, surviving husband
or widow shall take whole of remaining real and personal property.
A husband on death of wife shall hold for his life one-third of all
land owned by her at any time during coverture, estate known as
tenancy by curtesy. Wife is entitled to dower at common law. But
in order to be entitled to such curtesy or dower election and claim
therefor must be filed in registry of probate with six months of approval
of bond of executor or administrator, and such election is a waiver
of the interests in real property above mentioned. Probate Court
assigns dower or curtesy. Eights of curtesy which exist on Feb. 1,
1919, may be claimed as above provided, but in such case husband
shall take no other interest in real or personal property of wife, and
except as above preserved curtesy at common law is abolished.
Suoject to all the above, the rest and residue of intestate property is
distributed as follows: 1. In equal shares to children and issue of
any deceased child by right of representation; if there is no surviving
child, then to the other lineal descendants if all are in same degree of
kindred, otherwise by right of representation. 2. If intestate leaves
no issue, then in equal shares to father and mother. 3. If no issue
nor mother, then to father. 4. If no issue or father, then to mother.
5. If no issue, father or mother, then to brothers and sisters and to
issue of deceased brothers or sisters by right of representation; if
no surviving brother or sister, then to issue of such equally if all in
same degree of kindred to Intestate, otherwise by right of represen
tation. 6. If he leaves no issue, no father, mother, brother or
sister or issue of deceased brother or sister, then to next of kin in equal
degree, but if there are two or more collateral kindred in equal degree
claiming through different ancestors, those claiming tnrough nearest
ancestor are preferred. If intestate leaves no kindred, husband or
widow, estate escheats to commonwealth.
Execulions 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
all courts are returnable within sixty days alias executions five years.
Exemptions. Homestead, If recorded, to the value ot $»00.
Necessary wearing apparel of family, certain specified articles of
household furniture, and $300 worth In addition thereto, library. $50;
tools and Implements, $100, stock, $100; boats and fishing tackle,
etc.. $100; one cow. six sheep, one swine, and two tons of hay. sewing
machine, necessary wearing apparel, pew In church, etc. Materials and
stock designed and necessary tor carrying on hls trade and Intended to
be used or wrought therein, not exceeding $100 In value Shares In
oo-operatlve associations not exceeding $20 In value, funds of railroad
relief societies assessment Insurance benefits, uniforms, arms, and
equipments of militia officers.
Factor’s Act. The Factor’s Act, Rev. Laws c. 68 has been mate
rially affected by other statutes relating to sales, warehouse receipts
and bills of lading.
Frauds, Statute of. No action can be brought to charge an
executor or administrator on a special promise, to charge any person
BANKING AND COMMERCIAL LAWS—MICHIGAN
1786
missioner appointed by the Governor of this State for that purpose.
upon a special promise to answer for debt, default or misdoing of
Any such instrument may be executed according to the laws of any
another, upon an agreement made on consideration of marriage, upon
such other 'tate or territory. If officer has no seal, certificate of the
a contract for sale of any interest in land, upon an agreement not to
Clerk of the county or district, or of the Secretary of State within
be performed within a year, to charge a discharged debtor, unless the
which taken shall be attached. 3.—In any foreign country: notary
promise, contract or agreement or some memorandum thereof is
public, or minister plenipotentiary, minister extraordinary, minister
signed by the party or Dy his authorized agent. No agreement to
resident, charge d'affalrs, or commissioner or counsul of the United
make a will, or to devise or to give a legacy is binding unless in writing.
No contract of sale of personal property of $500 or over is actionable
States, appointed to reside therein.
unless there is part payment, acceptance and receipt of part of the
Actions. Common law forms of pleadings are used, but in some
goods, or some memorandum in writing signed by party to be charged
respects modified by statute. Non-resident plaintiffs must give
or his agent.
security for costs.
Holidays. January 1st., New Years Day, February 22nd,
Administration of Estates: In probate court of each county.
Washington's Birthday. April 10th, Patriot's Day. May 30th,
Claims are passed on by judge of probate or commissioners appointed
Decoration Day. July 4th, Independence Day. First Monday
for
each estate; within such time allowed by the court, not exceeding
In September. Labor Day. October 12th Columbus Day. Novem
In first instance one year nor less than four months; may be extended
ber 1 lt.h. Armistice Day, Thanksgiving Day, December 25th, Christ
not to exceed two years from date; the court may revive commis
mas Day.
sion any time before estate is closed and allow further time three
Interest. Legal rate Is 6 per cent. There are no usury laws,
months to examine any claim; an appeal to circuit courts from allow
but there are certain statutory provisions relative to interest upon
ance or disallowance of any claim. All claims barred, not presented
before administration is closed:—
small loans.
Limitation of Suits. Contract express or implied and not under
Administration of Intestate estates Is granted: 1st, to surviv
seal and not otherwise limited, six years; real actions, those upon an
ing husband or wife, or kin or grantee, or such one of them as Judge
attested note, If suit is brought by original payee or his executor or
may appoint, or as they may request. 2nd. to one or more of the
administrator, and personal actions on contracts not limited, twenty
principal creditors. 3rd, to such other person as the Judge may think
years. Absence from the State prevents the running of the statute
proper. Non-resident administrators and executors appointed in
of limitations as to a defendant until he comes into the State. If
other states, territories, or foreign countries cannot sue as such In
the person entitled to bring an action is a minor or is insane or impris
this State without procuring administration In this State.
oned when the right to bring such action first accrues, such action
Affidavits may be taken by any Judge, master In chancery, clerk
may be commenced within the time hereinbefore limited after the
of court. Justice of the peace, police magistrate, notary publlo, or
disability is removed. The statute does not run against thosa residing
circuit court commissioner. Any oath authorized or required to be
out of the State. See also Administration of Estates.
made, without the State for use In Judicial proceedings here, must be
Married Women. The real anti personal estate of a married
authenticated by Judge of a court having a seal, and the genuineness
woman, acquired at any time, remains her sole and separate property,
of
such Judge’s signature, existence ol the court, and that such Judge
not subject to the control oi her husband, nor Hable for his debts.
Is a member thereof, certified by the clerk of the court under the seal
Married women may carry on trade or business, make contracts, sue
thereof.
If In any other state or territory, may be taken before a
and be sued. In all matters relating to their separate property, and
commissioner appointed by the governor of this State, or any notary
such contracts are not binding upon the husband. Wife carrying
public
or
Justice
of the peace authorized by the laws of any aucb state
on business od own account must record certificate with city or town
or territory to administer oaths therein.
clerk, neglect to do this renders her property so employed Hable for
In actions at law affidavits of amount due on open and stated
husband's debts, and renuers husband liable (or her debts thus con | accounts,
attached to and served with process as commencement of
tract ed.
i suit make a prima facie case, unless denied by the defendant's affidavit
Mechanic’s Liens. Subject covered by statute.
I filed and served with plea.
Mortgages of Keal Estate. Power of sale mortgage is univer
Aliens. May Inherit or purchase and hold and convey personal
sally used. Foreclosure is regulated by statute, requiring publication I and real estate
prior to sale, and sale bars redemption. Mortgages may also be fore
Arbitration. Competent parties to any controversy which is or
closed by entry and peaceable possession for three years.
might be the subject of an action at law or suit In equity, may agree
Sales of Personal Property. Uniform Sales Act was adopted in
to arbitrate, and Judgment of any circuit court rendered upon the
1908. As to documents of title certain provisions of the Sales Act
award. No arbitration of claim of any person to any estate In fee
are affected by the Bills of Lading Act. As to sales of $500 or over,
or for life In real estate.
see Frauds, Statute of. Sales of merchandise in bulk are fraudulent
Arrest. By writ of capias In personal actions In tort and Id actions
unless the provisions of the Bulk Act are complied with. Delivery
for money collected by any public officer; or upon promise to marry;
of a bill of sale is not constructive delivery of the goods. Delivery
also by warrant allowed by any Justice of the peace or Judge of a
of possession of goods sold is essential as to third persons without
court of record, under the fraudulent debtor’s act, when the creditor
notice who purchase same goods for value, or as to attacning creditors
has commenced suit or obtained Judgment and the debtor has disposed
without notice. Vendor's retention of possession after sale is prima
of or concealed, or Is about to dispose of or conceal property Hable to
facie evidence of fraud. As to conditional sales, see that topic supra.
execution, or the debt was fraudulently contracted.
Stock Transfer. This subject is covered by Stock Transfer Act
Assignments for the benefit of creditors are void unless made
of 1910.
without preferences; must comprise all of assignor's property not
Suits. Civil actions in general, except those concerning land (if
exempt
from execution. The circuit court In chancery has super
one of the parties lives in the State), must be brought in the county
visory jurisdiction of such assignments.
where one of them lives or has his usual place of business. But in
lower courts venue depends on residence or place of business of defen
Attachments. Writs may be issued from Justice and circuit courts
dant. Where all parties are non-resident, action may be brought in
on affidavit showing: debt due on express or Implied contract, and
any county. Attachment of property owned by defendants residing
either that the debtor has absconded or Is about to abscond from
out of State may Be made sufficient to give jurisdiction in suit after
the State or has assigned or disposed of or Is about to assign and
notice published by order of court. Such notice to be given within
dispose of his property with intent to defraud his creditors; or Isa
one year from the entry of the suit. Persons commorant in State
non-resident
of the state, or a foreign corporation. May Issue from
may also be arrested on mense process and held to bail. A non
the circuit court tor debt not due but to become due, upon satis
resident plaintiff is usually required to furnish indorser for costs. See
factory
showing
to the circuit Judge, but In such cases judgment can
also Actions, supra.
not be taken until debt Is due. May Issue In actions of tort against
Taxes are assessed as of the first day of April In each year, and on
non-residents in certain cases.
real estate are a lien for two years after they are committed to the
Banks. Incorporation of:—Any number ol persons not less than
collector; but the collector may sell real estate for taxes after two
five may associate to establish for a period not to exceed thirty years,
years have elapsed, unless the estate has been alienated prior to the
commercial banks, savings banks, and banks having for both classes.
giving of the notice of such sale. If not paid on demand, collector
Capital required Is graded—$20,000 to $250,000, according to popula
may sell after advertisement.
tion of cities or villages where conducted. Upon filing articles of asso
Trustee Process. All personal actions except replevin, and actions
ciation, commissioner of banking department and Secretary of State
of tort for malicious pro ecution. slander, libel, or assault and battery
issue certificates of organization; board of directors chosen by the
may i e begun by trustee proce s anu goous, effects, or credits of
stockholders. No more tnan tne legal rate of Interest in advance
de tndant >n hand of a third person may be attached and held to
shall be received; file correct list of stockholders with commissioner
satisfy final judgment. See also Actions, supra.
of banking, and county clerk and report four times a year to be
published In newspaper where bank ts conducted. Commercial loans,
Warehouseman and Warehouse Re'ceipts. The Warehouse
not to exceed 50 per cent of the capital, on real estate securities, by
Receipts Act, Acts 1907, ch. 582 with amendments is in force.
two-thlrds vote of directors, except to secure debts due the bank.
Wills. Every person of full age and sound mind ma.v make a will.
Savings deposits payable as directors prescribe; commercial deposits
Will must be signed by testator, or by some person in his behalf, by
payable on demand. Banks combining commercial and saxings
his e press direction, and be attested and subscribed by three or more
deposits cannot Issue post notes nor any bill or note or certificate
competent witnesses in his presence and in the presence of each other.
as
money. Savings depositors preferred In distribution of savings
A will executed in mode prescribed by the law either of place where
department funds. Stockholders Individually ilaole equally and
will is executed or of place of testator’s domicil, shall be deemed
ratably
and not one for another to the amount of the par value of
legally executed and shall be of same force and effect as if executed
stock, for the benefit of depositors. All transfers of property, and
in mode prescribed by laws of Massachusetts provided will is in writing
payments of money after actual or contemplated insolvency to preand subscribed by testator. As to waiver of provisions of will by
vent legal application ot assets null and void; total liabilities of any
husbaud or wife, see Descent and Distribution, supra, also Revised
borrower shall not exceed one-tenth part of the whole capital and
Laws ch. 135, section IG and General Acts 1918, ch. 257, section 385.
surplus, may be Increased to one-llfth by two-thlrds vote of directors;
not to Issue certificates of deposit for borrowed money nor make
partial payments on such certificates- not Hable to depositors for payl ment of a forged or raised check unless notified within three months
SYNOPSIS OF
!• after return of voucher.
I
AU shares of bank stock shall be assessed against their owners In
THE
OF MICHIGAN
! the township, village, or city where the bank is located, taxes not
l paid by stockholders, bank's duty to pay.
i
Trust deposit and security companies may be Incorporated under
RELATING TO
. the general laws of the State applicable thereto. Seven or more
I
persons
may associate to establish—capital graded from $100,000
BANKING AND COMMERCIAL USAGES
to $5,000,000 according to population of cities where conducted;
i deposit with the state treasurer 50 per cent of the capital stock
Revised by Henry Wunsch and Edward F. Wunsch.
In bonds or real estate mortgages worth double the amount secured;
Attorneys at Law, Detroit. Michigan.
' powers such as are customary for trust companies. They cannot
I do any banking business.
(See Card in Attorneys’ List.)
Collaterals. Stocks, bonds or other personal property pledged
as collateral security for payment of money or the performance of
Acknowledgments of real estate Instruments may be before one
any obligation, upon default may be sold at publlo (or private sale
of the following officers: 1.—Within this State. Any judge, clerk
If so authorized by the contracti to satisfy the debt: but before publlo
or commissioner of any court of record, notary public, justice of the
sale, ten days notice must be given and served on pledger or legal
peace or master In chancery. The official should certify that "On
representative personally or by mall; such sale must be between
this day before me personally appeared..........................to me known
nine o'clock forenoon and sunset, at a public place In the township,
to be the person or persons who executed the foregoing Instrument
city, or village where held.
and acknowledged that he (or they) executed the same as his (or
their) free act and deed." Notary's certificate must show date of
Conditional Sales. Are valid between the parties: If consignee
expiration commission. Such Instruments must have two subscribing
or purchaser, on condition title Is retained by seller. Is authorized by
witnesses. 2.—In any other state, territory, or district of the United
the contract to sell, all such sales are valid. The consignee or purStates: Same officials as described above or any officer authorized i cnaser cannot make valid sales against the legal owner without the
authority of consignor or legal owner. (See Liens.) (See Frauds.)
by the laws of such state, territory, or district, or before a com
LAWS
BANKING AND COMMERCIAL LAWS-—MICHIGAN
Conveyances. Any person of full age or otherwise capable may
convey by deed any Interest In lands, whether In actual possession
or not. All grants and devises of lands to two or more persons create
estates In common: no Joint tenancy, unless expressly so declared,
except such as are made In trust or to executors, and except such as
are made to husband and wife, who take as "tenants by entirety.”
The words "conveys and warrants" In the deed describing the premises
and specifying the consideration, dated, duly signed and acknowledged
by grantor, are sufficient to oonvey title In fee simple and to warrant,
that grantor and hls 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 aval) against the mortgagee If there is no wife,
nor If wife Joins In the mortgage. Married women of full age Joining
with husbands In any deed, mortgage, power of attorney or other
writing, shall be bound In respect to their own title.
Corporations. Banks, mining, manufacturing. Insurance—fire,
marine, accident, burglary—printing and publishing, manufacturing
and mercantile, or a union of the two. partnership associations, real
estate associations, real estate, railroads, street railways, co-operative
benefit associations, co-operative savings associations, and religious
societies, are respectively organized under State general laws; required
to file with the secretary of state, articles of association.
Business Corporations. Three or more persons may organize. One
half of capital must be actually subscribed and at least 10 per cent
either In money or property must be paid In; If In property same
must be for the purpose of the business, and described and its value
specified in the articles. Stockholders vote In person or by proxy.
Each share has as many votes for directors as directory numbers,
and the aggregate vote may be distributed for one or more of direc
tors. May issue preferred and common stock of the par value of
$10 or $100. Preferred entitled to dividend not to exceed 8 per cent
quarterly, semi-annually or annually and If not paid be accumulated,
and paid, before any dividend paid on the common. Articles of
association to be recorded In the county clerk’s office of county where
operations carried on, and office of the secretary of state.
May hold
real estate for the purpose of the corporation and such as acquired
as security or in payment of debts; managed by not less than three
directors chosen by the stockholders annually hold office until suc
cessors are chosen: make duplicate reports in January or February
annually for the fiscal year last ending, of the financial condition and
property of the corporation to secretary of state: stockholders are
liable tor labor debts; they make all by-laws for corporation. Foreign
corporations organized under the laws of any other state of the United
states or of any foreign country, unlawful to carry on business In
this state until certificate of authority procured from secretary of
State: not capable of making valid contracts in this state until authQrIzed to carry on business; unlawful for any person to act as agent of
until authorized to do business. Sales of goods or merchandise by
the right of Inter-state commerce not affected by state laws.
Courts. Terms and Jurisdiction. Circuit courts, holding two
or more terms annually in each county, have original Jurisdiction In
all cases of law and equity wherein the amount In controversy Is $100
and upwards; and have appellate jurisdiction from Justice of the
peace probate courts and other inferior tribunals. Justice courts in
each county have Jurisdiction of cases at law Involving from $100 to
$500. In Grand Rapids Is a "Superior Court" for civil cases, limited
to parties resident of the city. Probate courts In each county have
Jurisdiction of estates ot deceased persons and testamentary trusts.
Supreme court has final appellate Jurisdiction from circuit, munic
ipal and recorders' courts
Days of Grace. Abolished.
Depositions. Testimony of any witness without the State oi
more than fifty miles from the court may be taken de bene esse,
before any Judge of any state or of the United States, or of any foreign
country, or before any circuit court commissioner In this or any other
state or of the United States, or any commissioner of this State, any
consul or consular officer. Justice of the peace, officer or notary public
authorized to administer oaths in the state or county where taken
and not interested as attorney or counsel or In the event of the cause;
reasonable notice given in writing by party or hls attorney proposing
to take, to opposite party or hls 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 intcrrogatlves. 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 hls own examination or cross
examination In the first instance
Descent. Real estate and personal property of Intestate after
payment of debts and administration expenses and allowances, as
follows
Real Property. One-third to widow, remaining two-thirds to hls
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 of kin in equal
degree through nearest ancestor; if any unmarried child dies under
ago his or her inheritance from any parent, to other surviving children
of same parent and their issue by representation. If husband or wife
survive and no issue, parents, brothers or sisters, or their children to
husband or wife, and if no foregoing relatives whomsoever estate
escheats to State. Illegitimates heir to mother; dying Intestate
estate descends to mother or her relatives If she be dead; become
legitimate by parents, Intermarriage or father's written 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 lands Is limited to the dower and
homestead right and the residue shall descend as above provided for
that portion not takeD by her.
Personal Estate. Residue—one-third to widow, two-thlrds 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 or their issue by representation,
only one child or issue of deceased child; to husband and such child
equally; If no child or issue of deceased child, one-half to husband
1787
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
Dower. Wife entitled to use of one-third part of ail lands owned
by her husband as estate of Inheritance any time during marriage.
No dower as against mortgages tor 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 mortages or by deed alone to one who has husband's title. Intent to bar
elng expressed; or by Jointure secured as bar.
Execution. May Issue to any county at once, unless stayed after
Judgment In circuit court. In lustlce courts. exDlration of five days;
not liens on real estate or personal property until levy by proper
officer. Real estate Is sold without appraisement to the highest
bidder, except homestead, to determine excess of value above $1,500
redemption claim. Defendant or his heirs or assigns may redeem
within twelve months, hls Judgment creditors and others having valid
liens within fifteen months from date of sale. Execution against the
body may be issued on all Judgments In actions of tort. Personal
property levied on, after setting off exemptions, may be sold on six
days' notice at public sale, to highest bidder to a sufficient amount to
satisfy the debt and costs; no redemption after such sales. Execu
tions from Justice courts do not run against real estate.
Exemptions. Homestead—selected by the owner and occupied
by him; not exceeding forty acres of land and dwelling thereon; or one
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.
Fraud. 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 of
debt of any bank or other Incorporated company of this Slate: issue
of any false receipts by warehousemen, merchants, or their airents—
reoetpt; or to wrongfully dispose of or convert property to their own
use after Issuing receipt; wrongfully removing or disposing of any
personal property by any agent delivered upon written agreement or
Instructions; wrongfully to dispose of property covered by chattel
mortgage by mortgagors or of property held by contract of pure, ase
without legal title by such purchaser or of property held under any
lease by lessor. For any officer or stockholder of any bank or any
other person for such bank; to sign. Issue or knowingly put In circula
tion any note or bill of any such bank, before the capital stock Is
paid tn. or before the president and directors thereof have complied
with the law; for any officer or agent of any bank knowing Buch bank
to be Insolvent or In contemplation of Insolvency, or for any assignee
of the property of such bank to sell or dispose of any money or property
of such bank with Intent to defraud, delay or hinder creditors thereof;
or for any agent or person to fraudulently obtain or dispose of any
money belonging to any insurance company organized In this State.
Frauds—statute of. No executor or administrator Is liable on
any special promise to answer damages out of hls own estates.
Fraud. Civil. Sales, transfers and assignments of stocks of goods,
wares merchandise and fixtures In bulk pertaining to conduct of any
business, otherwise than In ordinary course of trade of seller, etc.,
void as against creditors, unless the seller, etc., five days before sale,
make Inventory of the goods and cost price to seller of each article
and unless the purchaser demands from seller list of names and
addresses of creditors and hls Indebtedness, and within five days
before taking possession and payment notifies every creditor of such
sale.
Garnishment. Process may Issue tn any action brought In any
Justice court or circuit court on contract expressed or Implied. Judg
ment or decree, to hold whatever property any person may own or
have belonging to the debtor. Bills of exchange and promissory
notes due In the garnishee’s bands at the time of serving summons
are garnishable. Property, real or personal, things In action, equitable
Interests, held by fraudulent transfer from the debtor and any prop
erty liable to execution or to the payment of the debts of the debtor
In the garnishee’s hands may be recovered; wages of any 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 by 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 Monday in September, Thanksgiving Day
as specified by the Governor of State, December 25; every Saturday
from 12 o’clock noon to 12 o’clock midnight, all National, State.
County, or City election days.
Husband and Wife. 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 prose
cute or defend In hls name. If either wrongfully retains the other’s
property, acquired before or after marriage, the owner may sue for
same as If unmarried. Neither liable for the debts of the other before
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. Husband is liable after marriage for family
expenses, and for debts incurred by the wife with hls express or
implied authority. Either may constitute the other an attorney in
fact to dispose of property. Exponses of family and children's edu
cation are not chargeable upon the property of the wife but are
chargeable against the husband and he may be sued therefor.
Interest. Legal rate 5 per cent but hy written agreement may be
charged not to exceed 7 per cent. Forfeiture of all Interest Is penalty
for usury. When any Installment of Interest upoa any note, bond,
mortgage or other written contract shall become due and remains
unpaid. Interest Is allowed on such Installment from the time It became
due at same rate specified In the obligation or at the legal rate. Legal
rate collectable on all moneys due on any written obligations and on
all moneys due on all contracts express or Implied, whether verbal
or written; and on settlement of accounts from day of ascertaining
balance due; and on Judgments from day of entry; and on verdicts of
Jury from date to date of entry of judgments thereon, in computing
time of Interest and discount on negotiable paper, a month means
a calendar month and a year a calendar year of twelve months.
Judgments of courts of record are not liens on real estate or
personal property until by levy thereon of execution Issued from the
courts upon such Judgments. Liens under execution levied upon
real estate exist five years from and after the levy. Judgments expire
by limitation In ten years from date of entering In courts of record
and six years In Justice courts, and cannot be renewed except by action
at law thereon before expiration. Judgments of the Justice of the
pence may be entered In the circuit courts on transcript duly taken
to the circuit court and thereupon become judgments of such circuit
courts.
1788
BANKING AND COMMERCIAL LAWS—MINNESOTA
Liens. Any person, who pursuant to a contract with any owner,
part owner or leasee ol any land, furnishes labor or materials In the
construction of a building, etc., on such land, shall have a lien on such
structure and land to the extent of one quarter section or If In a city
or village, the lot or lots upon which such structure Is situated. And
any sub-contractor, who furnishes materials or labor In carrying fore
ward or completing such contract shall have a Hen upon such building
and land to the extent of the Interest of such owner, etc. Any person,
artisan, or tradesman for labor and skill aDplled upon any property
delivered for that purpose shall have a prior lien tor amount due for
such labor. Hotels, boarding houses and todglng 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.
Limitation of Suits. Judgments of courts of record and sealed
Instruments ten years, Justice court Judgments six years; accounts
and notes and other simple contracts and tor 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 Partnerships. May consist of one or more general and
one or more special partners. Specials contribute specific amount
of capital In cash or property at cash value, and If actually paid In
not liable for firm’s debts In excess of such special capital. General
partners transact the business of the firm.
Married Women. May make contracts In respect to their own
property and may hold and enjoy, and have the same rights and
remedies regarding their property as If unmarried. They may carry
on business In their own names with their own property by consent
of their husbands; cannot enter Into partnership with husband or
any other person and become liable for the firm contracts. Married
women's contracts to pay or to become liable for debts of husbands or
other person voidable, may however charge their real estate or per
sonal property to secure such Indebtedness by deed, mortgage or
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.
Mortgages on real estate, executed and acknowledged the same
as deeds; may be foreclosed under power of sale by advertisement
or In circuit ’court In chancery of the county wherein the property
Is situated. Trust deeds not in customary use but may be made and
executed and will be treated as mortgages.
Chattel mortgages and bills of sale; intended as security by mort
gagor, signed and delivered to the mortgagee, sufficient between the
parties, but void as to creditors, subsequent purchasers and encumbrancers In good faith and without notice, unless such mortgages and
bills of sale or true copies are filed In the city or township clerk's office
where mortgagor resides, or If non-resident of State, In city or township where the property Is situated: and unless affidavit of mortgagor
or of some one for him having knowledge of the facts Is annexed to
the mortgage or bill of sale, showing consideration la actual and
adequate and In good faith. Without such affidavit officers forbade
to receive and file such mortgages; cease to be valid against creditors,
subsequent purchasers, and eucumbrancers 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.
Negotiable Instruments. A promissory note is an unconditional
promise in writing to pay a sum certain In money, on demand, or at
a fixed and determinate future time, to the order of a specified person
or to bearer.
A bill ot 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, accented, 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, nr the payee of the
paper placing a signature In blank on the paper before delivery becomes
an endorser. Indorser engages on due presentment the paper shall
be honored and that he will pay to holder or any subsequent Indorser,
who may be compelled to pay; where maturity falls on Sunday or on
a holiday, payment due on the next business day; but where all of such
day not a holiday may If payable on demand be presented before noon
Fraud In procuring signatures and delivery defense against any holder
Presentment not necessary to charge anyone primarily liable. If
not payable on demand present on the day due; If on demand present
within a reasonable time after Issue; bill of exchange payable on
demand present reasonable time after last negotiation.
Fraudulent or material alterations do not affect the original Instru
ments In the hands of Innocent holder In due course.
Unconditional promise In writing to accept a bill of exchange.
ven before or after drawn, valid In favor ot all who take It upon
1th thereof for value: holder may decline qualified acoeptanee; 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.
The present negotiable instruments law of Michigan took effect
Sept, I". 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.
Power of Attorney. Almost every act that any person. Arm or
corporation may perform, may be performed by an attorney In fact
Conveyances, mortgages, or leases for more than three years' term
by attorney In fact, the power of attorney must be In writing signed,
sealed and acknowledged same as a deed ot lands, to be admitted for
record or to proof thereof.
S
Probate Law.
(See Administration of Estates.)
Protest. (See Negotiable Instruments.)
Replevin. Goods or chattels wrongfully taken or detained may
be replevined try owner or part owner or party entitled to possession.
Affidavit of plaintiff or agent necessary for Issue ot 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.
Taxes. 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 ot
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 tor each
parcel redeemed. City taxes are governed by charter or by the
general act under which cities and villages are organized.
Wills. Codicils. 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 bis or her presence by two or more witnesses
competent as such at the time. If one of the subscribing witnesses
shall testify to the execution of the will In all particulars and testa
tor was of sound mind at the time will was made, the court 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 lta 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
same to probate, a nuncupative will in which the value ol the estate
bequeathed does not exceed $300, duly proved by two witnesses, may
be allowed. Wills may be revoked by ournlng, tearing, cancelling,
or obliterating with Intention of revoking same by testator, or by some
other writing signed, attested, and subscribed In the manner provided
for execution of wills but shall prevent revocation Implied by law.
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SYNOPSIS OF
THE LAWS OF MINNESOTA
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Moore, Oppenheimer & Peterson
Attorneys at Law. St. Paul. (See Card In
Attorneys’ List.)
Acknowledgments may be certified by the following officers:
1. Within the State by a resident Judge, clerk or deputy clerk ot
any court of record therein, a notary, public. Justice of the peace,
town, city or village clerk, or recorder, court commissioner, register of
deeds, or county auditor, or their deputies, county commissioner, or
member of the legislature. 2. Out of the state but in the United States
by a Judge of the supreme, circuit, or district courts of the United
States, or of any court of record of any state, territory, or district,
the clerk or a deputy clerk of any such court, a notary, a Justice of the
peace, or any commissioner appointed by the governor of this State
Tor that purpose. 3. In foreign countries by a notary public, or
by any minister, charg’> d'affaires, commissioner, consul, commercial
agent or other consular or diplomatic officer of the United States
appointed to reside in such country, and deputies or other represen
tatives of such officers. The form of the certificate may be, "On
this..........................day of............................ 19........ 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 of........... 19... 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) of (name of corpo
ration), that the seal affixed to the foregoing Instrument is the cor
porate 6eial of said corporation and that said instrument was executed
in behalf of said corporation by authority of its board of directors,
and said A. B acknowledged said instrument to be the free act
and deed of said corporation.” If made outside the State the impres
sion of the official seal of the certifying officer must be affixed, or
there must be attached the certificate of the clerk of a court of record
or the county or district in which it is made under his seal that the
signature of the certifying officer Is genuine.
Actions. The distinction oetween actions at law and suits In
equity Is abolished. There Is only one form of action. It Is called
a olvll action and must be prosecuted In the name of the real party
In Interest except that executors, administrators, trustee of an express
trust and persons expressly authorized by statute may sue without
Joining the person for whose benefit the suit Is brought.
Administration of Estates. Estates of deceased persons are
administered In probate courts of which there Is one In each county
presided over by the probate Judge of the county.
In granting letters of administration preference Is given: 1. To
the surviving spouse or next of kin or such suitable person as they
or either of them select. 2. If no application Is made for thirty
days after death of Intestate, to principal creditor or creditors, or
some person Interested, and If deceased was native of foreign country
to the consul or other representative of that country residing In this
State, or to such competent and suitable person as he may select
Upon granting lettfeia the court makes an order limiting the time
within which creditors may present their claims. This time must
aot be less than six or more than twelve months; but may be extended
for good cause to a date not more than eighteen months after notloe
given of the order. On proof by affidavit that there are no debts
the time limited may be three months. Notice of the order is given
by publication thereof once each week for three weeks in a newspaper
In the oounty. Claims not presented within time limited are barred.
Non-resident executors and administrators may sue In this State.
BANKING AND COMMERCIAL LAWS—MINNESOTA
Allen.*. (See right to hold property.)
Arbitration. All controversies which can be the subject of a civil
action may be submitted to one or more arbitrators for decision,
except a claim to an estate In fee or for life In real estate.
Arrest. There Is no arrest for debt.
Assignments. Statutes relating to assignments for the benefit of
creditors are In force except as affected by the U. S. Bankruptcy Act
of 18U8
Practically they may be said to be superseded by that act.
Attachment. Before allowing a writ of attachment, the court
must require of the plaintiff a bond In the sum of at least $250. and
an affidavit of the plaintiff, his agent 01 attorney. (1) That the debt
was fraudulently contracted or (21 the defendant Is a foreign corpora
tion or non-resident or 13> has departed from the State as he believes
with Intent to defraud or delay his creditors, or to avoid the sendee ol
a summons or keens himself concealed therein with like Intenl or (4)
has assigned, secreted, or disposed of his property with Intent to delay
or defraud his creditors or Is about to do so.
Banks. Three or more persons may Incorporate as a bank. They
must first secure from the state securities commission a certificate of
authorization, which is granted or denied after a bearing and intro
duction of evidence. Capital required is $10,000 in towns of 1,000
or less population: $15,000 in towns of 1,000 to 1,500; $20,0 )0 in
towns of 1,500 to 2,000; and $25,000 in towns exceeding 2,000 popu
lation. Capital stock must be fully paid in cash before bank can do
business. Stockholders are individually liable for debts of bank in
an additional amount equal to the par value of stock owned by them,
and this liability continues one year after any transfer of the stock.
At least one-fifth of the net profits must be placed in surplus fund
before anv dividend is paid until the surplus amounts to 20 per cent
of the capital, and this surplus must be maintained unimpaired
Every bank must make to the superintendent of banks not less than
tour reports each year which musi be published. Liabilities to a bank
of any person, corporation or Arm. for money borrowed, including
therein liabilities of the several members thereof, shall at no time
exceed 15 per cent of Its capital and surplus. It must have a reserve
equal to one-fifth of all Its matured or demandable liabilities, one-hall
Of which must be cash, and the remainder may be balances due from
solvent banks. In case of Insolvency or violation of the banking laws,
the superintendent of banks may take possession, and apply to the
court for a receiver.
Bills of Lading. The Uniform Bills of Lading Act became effec
tive A j ril 20. 1917.
Initial Carrier receiving property for transportation between points
within the State, liable for loss, damage or injury caused by It or
■other carrier en route, and all contrary provisions in Bill of Lading
1789
Justices of the pence have no Jurisdiction In civil actions where the
amount Involved exceeds $100.
Days of Grace are abolished
Depositions may be taken at any place within or without the
State upon notice tn writing, stating the reason tot taking the same,
the time and place, and giving the opposite party one day for prepa
ration. and one day for every 100 miles, exclusive of Sundays and
the day of service, before any officer authorized to administer oaths.
Descent and Distribution of Property. Homestead descends
to surviving spouse for life, remainder to children and Issue of deceased
children If no children or issue of deceased child, then to surviving
spouse in fee. exempt fro n debts not a valid charge theieou at time of
Intestate s death. After payment of debts and certain allowances to
the surviving spouse out of the personal property, the residue of the
estate descends as follows 1. One-third to the surviving spouse,
balance In equal hares to children and lawful Issue of deceased child
by right of representation 2. If no surviving child or lawful Issue
of deceased child, the whole estate descends to surviving spouse If
any 3. It no Issue or surviving spouse, to father and mother In equal
shares, or if hut one survive, to such survivor. 4 If no surviving
tssue. spouse, father or mother. In equal shares to brothers anil sisters
and lawful Issue of deceased brother or sister. 5. If no Issue, spouse,
father, mother, brother, sister, or living Issue of deceased brother
or sister, to next ol kin. In equal degree, but those who claim through
nearest ancestor preferred to those claiming through ancestor more
remote. 6. If no spouse or kindred, to the State.
Dower is abolished.
Employers Liability Act, Effective since April 24. 1913.
Executions Issue from district courts any time within ten yean
after Judgment and may run to any county where Judgment Is docketed
are returnable in sixty day- and may he renewed for sixty days at a
time on request of Judgment creditor or his attorney Personal prop
erty Is sold on ten days' posted notice; real estate on six weeks pub
lished notice, and sublect to redemption by Judgment debtor or his
assigns within one year from date of sale.
Exemptions. Homestead outside of Incorporated municipality
may Include eighty acres If In Incorporated place containing less
than 5.000 Inhabitants. Its area shall not exceed one-half acre, and In
larger Incorporated places one-third of an acre without regard to value.
Family pictures, library, musical Instruments for use of family, wear
ing apparel, beds, stoves, cooking utensils used hy family, other house
hold furniture not exceeding $500 In value, three cows ten swine, one
yoke of oxen and a horse, or In lieu thereof, a span of horses or mules,
twenty sheep, the wool therefrom raw or manufactured, food for
such stock for one year's supply, one wagon, cart or dray, one sleigh,
two plows, one drag, and other farming utensils not exceeding $300 In
value, provisions for debtor's family for one year's support, tools kept
void.
for purpose of carrying on trade, and stock manufactured In whole or
Chattel Mortgages. Every mortgage of personal property which
In part by debtor not exceeding In value $400; library of professional
is not accompanied by Immediate delivery ami followed by actual and
man presses, type, and tools of publisher of newspaper not exceeding
•continued change of possession Is void as to creditors and subsequent
$2,000. and hlB stock In trade not exceeding $400; watch, sewing
purchasers and mortgagees In good faith, unless It Is made In good
machine, typewriter, bicycle, seed for use of debtor for one season not
faith, attested by two witnesses, acknowledged and filed with the
exceeding certain amounts library and apparatus of college or school;
register of deeds of the county in which the mortgagor resided at
money payable to wife or child from Insurance on life of deceased hus
the time of its execution, if a resident of the State, or of that in which
band or father not exceeding $10,000; money or relief from benefit
the property was then situated if a non-resident, if the mortgagor
association; money from insurance on exempt property; wages not
resides in St. Paul, Minneapolis or Duluth or is a non-resident, and
exceeding $35 for services rendered during preceding 30 days; but all
the property is situated there, the mortgage must be tiled with the
wages paid and earned within said thirty day period shall be con
city clerk of such city instead of the register of deeds of the county
sidered a part of (or all) of said exemption (Chap. 202, Laws 1915.)
Duplicates or copies certified by any officer with whom the mortgage
has been properly filed, may be tiled in other places wherein any part ol
Holidays. January 1st: February 12th and 22d; Good Friday;
the property was situated when the same was made. As against
May 3()th; July 4th: first Monday in September; Tuesday alter first
creditors of the mortgagor and subsequent purchasers and mortgagees
Monday In November, each even-numbered year (election dayl, and
in good faith the lien does not continue beyond the term of six years
December 25th are legal holidays. Thanksgiving day is so far that
from the date of tiling the mortgage unless the indebtedness is not
negotiable Instruments or contracts due that day are payable next
then due and payable by its terms, in which case it continues two years
succeeding business day.
after the maturity of the debt and no longer.
Interest. Six per cent Is legal rate, but by special contract any
Chattel mortgages given by a married man or woman on property
rate not exceeding 10 per cent may be exacted. Usurious contracts
exempt from execution must be executed by both husband and wife
are void.
if living.
Judgments may be entered by default in district courts at expira
Conveyances. Deeds and mortgages of real estate must be exe
tion of twenty days after service of summons. When docketed In those
cuted in the presence of two subscribing witnesses and to entitle them
courts
they become liens upon all real estate of the debtor In the county
to record must be acknowledged by the person executing the same.
where docketed then owned by him or afterwards acquired, and the
Conveyances made out of the State may be executed as above, or
lien continues for ten years after the entry of the Judgment Trans
according to the laws of the place of execution
cripts of Judgments tn Justice and municipal courts may he filed in
Corporations. May be organized by any number of persons, not
district court and there docketed, and then become lien on real estate.
less than three, for the purpose of engaging In any lawful business
Liens. To preserve a mechanic's lien a verified statement must
The amount of capital stock shall In no case be less than $10,000,
be filed by the lien claimant within ninety days after furnishing the
divided Into shares of not less than $1.00 or more than $100. The
last Item of labor or material In the office of the register of deeds of
incorporators must sign and acknowledge a certificate specifying; 1.
the county In which the Improved premises are situated, or If claimed
thenarne general nature of business and principal place of transacting
upon a line of railway or Its appurtenances with the secretary of state.
the same 2 Period of Its duration if limited. 3. Names ana
Limitation of Actions. On contracts express or Implied six
places of residence of Incorporators 4. In what board manage
years: Judgments ten years: to foreclose mortgages fifteen years; to
ment Is vested, date of Annual meeting at which such board shall be
recover real estate, fifteen years. But no action shall be maintained
elected names and addresses of persons composing board until first
on a judgment note, or other instrument authorizing Confession of
election 5. Amount of capital stock, how the same is to be paid,
Judgment unless begun wi'hln one year after Cause of Action accrued;
number of shares and par value of each, and If more than one class, a
and no action shall be mamta ned upon any Judgment of any Court, of
description, and terms of Issue and method of voting of each. 6
the U. S. or of any State or Territory entered by Confession under a
Highest amount of Indebtedness to which corporation shall he subject.
warrant of attorney, unless the action upon such udgment be begun
This certificate Is filed with the secretary of state and with the register
within one year after the rendition or entry thereof
of deeds of the county In which the principal place of business Is
located and published In such county two successive days In a daily
Married Women. Property acquired by wife before or after mar
newspaper, or two successive weeks in a weekly.
riage remains her separate estate. It Is liable for her debts and torts
to the same extent as If she were unmarried, and she may make any
Every stockholder In any corporation, except those organized for the
contract which she could make If unmarried, except that no convey
ose of carrying on a manufacturing or mechanical business is
ance or contract for sale of her homestead or any Interest therein Is
s to creditors of the corporation in an amount equal to the par
valid unless her husband Joins In the same.
value of the stock owned by him.
Both husband and wife are liable for necessaries furnished to and
Foreign Corporations. Every foreign corporation organized for
used by the family.
ecuniary profit before It can transact or continue business in this
Mortgages on real estate executed In the presence of two subscrib
tate acquire hold or dispose of property or bring suit here must
appoint an agent residing in the State, authorized to accept service ing witnesses, acknowledged and recorded In the office of the register of
deeds of the county In which the mortgaged premises are Rltuated may
of nrocess and must file with the secretary of state an authenticated
be foreclosed by publication or by action. The mor gagor or his
codv of such appointment and of its charter and a verified statement
assigns may redeem within one year from the date of the foreclosure
showing'the proportion of its capital stock represented by its property
■ale.
and business in this State, and upon that it must pay a fee. This act
The authority of an attorney conducting a foreclosure by adver
does not apply to exclusively manufacturing corporations, traveling
tisement, must be in the form of a Power of Attorney, executed and
salesmen soliciting business for non-resident corporations, nor to those
acknowledged by the mortgagee or assignee In the same manner as
■engaged only in the business of loaning money or Investing In securities,
a conveyance and recorded prior to the sale in the County where
nor to those organized to raise and Improve live stock, cultivate farms,
the foreclosure proceedings are had.
can fruits or vegetables, nor to those whose sole business Is transporThe mortgagor may covenant to pay or authorize the mortgagee
tat ion of freight or passengers by water.
to retain any attorney’s fee In case of foreclosure of not exceeding
Courts. District courts hold one or more terms a year in each
$25;
where the mortgage debt does not exceed $500; $50 where the
organized county, have original jurisdiction in all civil actions at law
mortgage debt exceeds $500 and does not exceed $1,000; $75 where
and in equity, and In all criminal cases where the punishment exceeds
the mortgage debt exceeds $1,000 and does not exceed $5,000; $100
three months' imprisonment or a fine.'n.0.rc„ l,han„S,l
Ktl,
where the mortgage debt exceeds $5,000 but does not exceed $10,000;
The supreme court has appellate Jurisdiction in all cases, but there
and $200 where the mortgage debt exceeds $10,000
is no trial by Jury in that court. It has original Jurisdiction in such
A Registry Tax of 15 cents is imposed upon each $100 or fraction
remedial cases as are prescribed by law.
thereof of the principal debt secured by any mortgage covering prop
Probate courts have exclusive Jurisdiction of matters connected
erty
within the State of Minnesota and recorded in said State. In
with the settlement of estates of deceased persons, minors, and Insane
case the maturity of any portion of the debt so secured shall be fixed
persons. Terms are held on the first Monday of each month In each
at
a
date more than five years after the date of said mortgage, the
organized county.
,
_ ,
. . .
amount of such Registry Tax shall be at the rate of 25 cents on each
Municipal courts exist in certain cities, and are courts of record with
$100.
No such mortgage or assignment or satisfaction thereof or
I
Umlted jurisdiction in civil and criminal actions.
B
S
1750
BANKING AND COMMERCIAL LAWS—MISSISSIPPI
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 of Minne
sota, such tax shall be imposed upon such proportion of the 'whole
debt secured as the value of the real estate described in this State
bears to the value of the whole real estate, such value to be determined by the State Auditor upon application of the mortgagee.
Notes and Bills of Exchange. Uniform Negotiable. Instruments Law has been in force since April 15, 1913. Commercial paper
is payable at the time fixed therein without grace. When due
or 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.
Right to Hold Property. No person unless he be a citizen of the
United States, or has declared his Intention to become a citizen, and
no corporation unless created under the laws of the United States, or
of some state thereof, shall acquire lands exceeding 90.000 square feet,
except by devise. Inheritance, or through security for Indebtedness.
This does not apply to actual settlers on farms not exceeding 160 acres,
or to subjects of a foreign country, whose rights to hold lands are
secured by treaty.
No corporation, more than 20 per cent of whose stock Is owned by
persons not citizens of the United States, or by corporations not
created under Its laws, or those of some state thereof, can acquire
lands, and no corporation unless organized for the construction ol
operation of a railway canal or turnpike can acquire more than 5,000
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 acquired In the collection of 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 of Goods. The Uniform Sales Act became effective April
20, 1917.
Taxes on real estate may be paid one-half before the first day of
June and one-half before the first day of November of the year follow
ing the levy thereof, and If not so paid a penalty of 10 pei 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
Wills. Every person of full age and sound mind may dispose of
property by will In writing, signed by the testator, or by some person
fn his presence and by his direction, attested and subscribed In ht»
presence by two or more competent witnesses. Every person Include!
married women. If. after making a will the testator marries, the will
Is thereby revoked.
j
}
I
i
j
,
■
!
Insolvent, may prefer creditors, if in good faith and no benefit, direct
or indirect, is reserved. No provision for the discharge of a debtor
on ins 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.
Attachment. Against a debtor who Is a non-resident or who
removes or Is about to remove himself or property out of the State;
who so absconds or conceals himself that he cannot be served with a
summons: or who incurred the debt in conducting the Imsinoss of a
ship, steamboat or other waler craft In some of the navigable waters
of this Stale; or who assigns or disposes of his property, or some part
thereof, or Is about to assign or dispose of his property with Intent to
defraud his creditors; or who has property or rights in action which
he conceals and unjustly refuses to apply to the payment of Ills debts;
or who has converted or is about to convert his property hit • money
or evidences of debt, with the intent to place it beyond the reach of
creditors: or who has fraudulently contracted the debt or incurred
the obligation for which suit has been or is about to be brought, may
be attached. In addition to those named above, the following grounds
exist:
That the defendant is buying, selling, or dealing in, or
has within six months next before the suing out of the attachment,
directly or Indirectly, bought, sold or dealt in future contracts, com
monly called futures '10 That he is In default for public money,
due from him as a principal, to the State, or some county, city, town, or
village thereof 11 That defendant Is a banker, banking company,
or corporation, and received deposits of money, knowing at the time
that he or it was insolvent, or has made or published a false or 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 his effect#
out of State before debt will be due, with Intent to defraud. Non
resident creditors have the same rights of attachment as resident
creditors, whether the debtor lie 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
of defendant for wrongfully suing out attachment. Any creditors may
intervene and contest ground of attachment
Attachment in Chancery on bill against the property, or debt#
of an absent, non-resident, or absconding debtor. A Hen Is acquired by
the suit. If a writ for the seizure of goods 1# obtained, bond I# re
quired.
Available to non-residents.
Banks. Required capital stocks as follows: In cities, villages,
and communities with population 1,000 or less $10,000- population
1,000 and not mine than 2,500, $15,000; population 2,500 and not
more than 6,000, $25,000; population from 6,000 to 10,000, $35,000;
10,000 or more, $50,000. This does not apply to existing’ banks of
(1914.) There shall be a board of bank examiners of three men to
be elected, duties to enforce banking laws and examine banks period
ically. Deposits guaranteed; depositors names not to be divulged;
SYNOPSIS OF
Banks penalized for failure to comply with orders of examiners'
Banks must have at least three directors; unlawful for any hanks to
receive, deposits for six months in excess of ten times its paid up
MISSISSIPPI
capital and surplus; Banks officers must not contribute to campaign
fund of candidates.
RELATING TO
All, except, national banks, are required to make a report, not less
than four times each year, to the commissioner. And the commis
sioner shall make requisition on all banks for these reports to be
BANKING AND COMMERCIAL USAGES
made as of dates prior to the date of the requisition, and such date
to be known only to himself. Such reports shall be verified and shall
Prepared and Revised by Chambers & Trenholm,
be published in full in a newspaper of the town or city where the
bank is located. .Resources and liabilities shall be stated in such
Attorneys at Law, Jackson. (See Card In Attorneys' List.)
reports. Banks collecting drafts with bill of lading attached must
hold funds at least ninety-six hours. Banks must give notice to
Accounts. Sworn to entitles plaintiff to Judgment, unless defend
administrator or executor of deceased persons of deposits of money
ant files affidavit denying. The affidavit must be by the oredltor or
and papers held for the deceased. Directors of every bank to hold
his agent. All accounts must be itemized.
at least three regular meetings each year and keep a complete record
Acknowledgments before any Judge, clerk of a court of record
of ail proceedings. Every bank with paid up capital of as much
under his seal. Justice of the peace, notary public, or member of the
as $100,000 may do business as trust company; may act as guardian,
board of supervisors, before any police Justice, or mayor of any city,
receiver, etc.may execute bonds in legal proceedings and generally
town or village. Acknowledgments in another state may be before
perform the duties of a trust company; may establish a special mutual
any of the judges of the supreme court, or any district judge of the
loan department; in sucb department interest on loans not to exceed
United States, or a judge of the supreme or superior court in any state
8 per cent per annum. Bank not permitted to allow the use of
or territory any justice of the peace, whose official character shall
Its name by others in making loans.
be certified to under the seal of some court of record in his county,
Chattel Mortgages and Deeds of Trust may be executed and
or by any commissioner residing In such state or territory, appointed
recorded as other mortgages. Foreclosure Is usually by trustee's sale.
by the governor of Mississippi, or a notary public or a clerk of a court
If property be removed to another county, mortgage must be there
of record having a seal of office. Acknowledgments or proof of
recorded within twelve months to affect purcha8ers without notice.
deeds to property In this State by persons in a foreign country may be
made before any court of record, or tbe mayor or chief magistrate
Mortgages on property to he acquired are vfelld. hut not on a changing
of any city, borough, or corporation where the grantor or witnesses
stock of goods If the mortgagor remain in possession and continue
reside, or may be; or beforo any commissioner appointed by the gov
business. Reservation of title by the seller of a chattel to secure
ernor of this State, or before any ambassador, foreign minister sec
purchase money is valid without record, even against purchaser#
retary of legation, or consul of the United States. The certificate
without notice..
shall show that the party or party and witness were identified before
Collaterals. General law prevails.
the officer, and that the party acknowledged the execution of the
Contracts for sale of land, or tor lease for more than one year,
Instrument, or that the execution was duly proved by the witness or
to
be In writing. Same lu regard to sale of chattels of the value ot
witnesses Acknowledgment must state that party "acknowledged
more than $50, unless delivery in whole or In part is made. Dealing
that he signed and delivered” Instrument.
In
futures
Is forbidden and a ground for attachment. Gambling con
Actions. All distinction as to forms abolished. Service five days
tracts and ordinary contracts made on Sunday void. Contracts by
before return day. All action triable In the circuit court at first term
foreign
corporations
who have not complied with registration of
In which the defendant has been personally served with process thirty
charter law are void.
days before the return day. Mandamus, quo warranto, mechanics'
. Conveyances. May vest title presently or in future. All estate#
Hens, attachments, and replevin triable at return term on live days’
In land greater than for one year must be by deed, and to affect pur
notice.
chasers without notice must be recorded. Estates tall prohibited,
Administration of Estates. Had In chancery court, according
except that a deed or devise may be made to a succession of living
to will. If any. Claims aeainst deceased must be registered within one
donees not exceeding two and to the heirs of the body of the remain
yearafterthe first publication of notice to creditors; registration stops
derman, or, In default thereof, to the right heirs of the donor In fee.
the general statute of limitations. All debts are to he paid before
Corporations convey under seal. In all other cases private seal#
heirs, distributors, or legatees. Claims agalnBt insolvent estates are
abolished. Conveyances or devises to two or more, or to husband
paid pro rata.
and wife, create tenancy In common. Rule In Shelly’s case abolished.
Remainder good without particular estate. The words ''grant, bar
Affidav its or Oaths before a Judge of any court of record, clerk of
gain, and sell" operate as a covenant that grantor Is seized of some
such court, master in chancery, member of the board of supervisors,
estate of Inheritance. Words "convey and warrant” operate as a
Justice of the peace, notary public, mayor, or police Justice of a city,
general covenant of warranty. The words "convey and warrant
town or village; in another state by any officer thereof, or of the
specially operate as a warranty only against the grantor or those
United States, authorized to administer oaths.
claiming
under him. A quitclaim deed has practically the same effect.
Allens. No restrictions on the rights or resident aliens to acquire
Husband and wife. If living together, must Join In conveyance or
property or dispose of It Non-resident aliens can not hold land, but
$3
C
ooo
FanCe
01 hotnestead of either, or It will be void as to all under
may take liens thereon to secure debts and purchase at foreclosure
thereof, and thereafter hold It for not longer than twenty years, with
Corporations.
Corporations except for the construction and
power to sell to a citizen In fee; or he may retain It by becoming a
operation of a railroad other than street railroads, and the carrying
citizen
on of an insurance business, other than mutual Insurance, may be
created under a general cha ter.
Apneals from Justice court to circuit court within ten days. From
circuit and chancery courts to supremo court wit hin one year. Appeals
Application for charter signed hy each of the incorporator# and
also in certain cases from board of supervisors and municipal courts.
acknowledged. It must then be published three consecutive week#
In a newspaper published at the domicile of the proposed corporation
Arbitration. Parties may submit to arbitration of one or more
The application, with proof of publication, must be forwarded to the
disinterested arbitrators, with agreement that proper court shall enter
secretary of state together with the fee for recording. The same to
Judgment.
the attorney genera for his opinion as to the constitutionality and
Arrests mad# by certain officers, or private persons may arrest for I legality of the proposed corporation, after which it is referred to the
offense committed In his presence. No arrests or Imprisonment for I governor for his approval or disapproval. The governor then return#
debt.
It to the secretary of state with his action endorsed thereon If h#
Assignments and Insolvency. No insolvent law. An assign
approve it, tne secretary of state shall record it In his office and
certify to the #ame records, and transmits It to the applicant#. It
ment may be made for the benefit of creditors. Debtor, though
THE LAWS OF
BANKING AND COMMERCIAL LAWS—MISSISSIPPI
1791
mast be recorded In the office of the clerk of the chancery court of
In justices oourts after the lapse of ten days from judgment rendered,
Within thirty
unless recovering party maues affidavit that he Is In danger, by delay,
days after the organization, the corporation must make report of
of losing hls debt or demand. In which case execution Issues forthwith.
the organization to the secretary of state. I f such report be not made
No redemption of property sold under execution or mortgage.
the charter granted shall be void, and all persons doing business
Exemptions. The following personal property Is exempt from
thereon shall be deemed partners In the business, and liable as such
seizure
under execution or attachment, to-wlt:
Corporations thus created possess the powers usual and Incident
The
tools of a mechanic necessary for carrying on hls trade.
to private corporation" generally, but existence Is restricted to fifty
The
agricultural
implements of a farmer necessary tor two male
years. Corporations created as above named may hold property
necessary for their purposes, not exceeding one million dollars, manu- j laborers.
The
Implements
of
a laborer necessary In bis usual employment.
facturlng companies and banks excepted, which may hold property
The books of a student required tor the completion of hls educa
to the amount not exceeding two million dollars.
Under the laws passed by the Legislature of 1912 all corporations. i tion.
The wearing apparel of every person.
whether domestic or foreign, are not allowed to acquire title in fee, <
The libraries of all persons. Including pictures, drawings, and paint
or for a term of years, to, or own land for agricultural purposes, in , ings,
not exceeding five hundred dollars In value: also the instruments
this State outside of an incorporated city, town, or village. A cor
surgeons and dentists, used In their profession, not exceeding two
poration may be lessor or lessee for not more than twenty years of : of
hundred and fifty dollars in value.
as much as 10,000 acres of land to be used for agricultural purposes,
The arms and accoutrements of each person of the militia of the
but any such lease or contract shall not be renewed or extended so
State.
as to authorize the holdings of said lands for another period.
All globes and maps used by the teachers of schools, academies, and
This law does not prevent corporations from taking deeds of trust,
or mortgages on real estate to secure loans or debts, or from acquiring | oolleges.
The following property of each head of a family, to be selected by
title thereto upon foreclosure of such securities or from acquiring
the debtor, is exempt
title to land by deed for the collection of debts, and that all lands so
Two work-horses or mules, and one yoke ot oxen.
acquired may be used and operated after foreclosure for all agricul
Two head of cows and calves.
tural purposes during the time so held for not longer than twenty i
Ten head of hogs.
years.
Twenty head of sheep and goats each.
It Is also the duty of every corporation that slia.ll acquire Interest
All poultry
In or title to land in this State to file the deed to same in the office
All colts under three years old raised In this State by the debtor.
of the Chancery Clerk of the county In which such land, or a part of
Two hundred and fifty bushels of com.
it, is located within sixty days after the date of the deed.
Ten bushels of wheat or rice.
If any corporation or other person shall have acquired any right,
Five hundred pounds of pork, bacon, or other meat.
title or interest in any land in violation of this Act. they shall be dis
One hundred bushels of cotton seed.
solved by a suit brought by the Attorney General or the State or by
One wagon, and one buggy or cart, and one set of harness for each.
the District Attorney, if it is a domestic corporation, and if a non :
Five hundred bundles of fodder and one thousand pounds of hay.
resident corporation they shall not be permitted to do business Id
Forty gallons of sorgnum or molasses or cane syrup.
this State, and the court shall thereafter appoint a receiver to take
One thousand stalks of sugar cane.
charge of all property in this State belonging to such corporation or
One
molasses mill and equipments, not exceeding one hundred and
so held in trust and to dispose of the same under order or the court,
fifty dollars In value.
and after paying all debts of the corporation and all costs and charges
’
Two
bridles and one saddle, and one side saddle.
incident to said suit, the remainder shall be paid and distributed to
One sewing machine.
the stockholders.
Household and kitchen furniture not exceeding In value two hun
This Act does not affect the rights of existing corporations in this i dred
dollar*.
State, but. is passed to prevent a monopoly in agricultural lands.
All family portraits.
Corporations may take a lien on property real, or personal, to a
One mower and rake for cutting and gathering bay or grain.
greater amount than they may hold as a security for a debt. If same
And the following property shall be exempt from garnishment or
shall be held for a longer period than ten years. Stockholders
other legal process, to-wit:
Individually liable for the debts the corporation contracted during i
The wages of every laborer or person working for wages, being the
hls ownership of stock for the baianoe that may remain unpaid for
bead of a family, to the amount of fifty dollars per month; but thia
stock subscribed for and may be sued by any creditor. Directors are t paragraph shall not apply to a debt for board and lodging or a Judg
liable for the wilful mismanagement or for allowing capital withdrawn
ment founded on a debt for board and lodging.
while debts exist. Corporations under the laws of other states or of |
The proceeds of Insurance on property, real and personal, exempt
foreign countries may sue In this State, and have the same rights In j from execution or attachment, and the proceeds of the sale ot such
the State as non-resident Individuals. The legislature may repeal or
pro perty
amend charters granted after November 1, 1890. provided rights of
Payable to Executor. Life Insurance policy not exceeding five
stockholders are not infringed. All foreign corporations doing business i thousand dollars, payable to the executor, or administrator, shall
in this state shall file a certified and duly authenticated copy of its
inure to the heirs or legatees, freed from all liability for the debts of
charter or certificate with the secretary of state. Charter must be
the decedent, except premiums paid on the policy by anyone other
certified by the president and secretary or other chief executive under J than the Insured and debts due tor expenses of last illness and for
the corporate seal. Fees are to be paid according to capital stock, viz.: j burial; but if the life of the deceased be Insured for the benefit of hls
$10,000 and under, $20.00. Between $10,000 and $30,000, $40.00.
heirs or legatees at the time of hls death otherwise: and they shall
Between $30,000 and $50,000, $60.00. When over $50,000, one-tenth
oollect the same, the sum collected shall be deducted from the three
of one per cent and not to exceed $250.00.
housand dollars, and the excess of the latter only shall be exempt.
Life insurance policy to amount not exceeding $10,000.00 goes to parties
Costs. Non-resident or insolvent plaintiff required to give security
named as beneficiaries free from liability for debts of insured.
though an insolvent may sue in forma pauperis.
Homestead In Country. Every citizen being a householder, and
Courts. Terms and Jurisdiction. Justices' courts meet twice each
having a family, shall be entitled to hold exempt the land and build
month; circuit and chancery courts In each county twice a year;
ings
owned and occupied as a residence, but the quantity shall not
supreme court twice a year, in October and March. Justices' oourts
exceed one hundred and sixty acres, nor the value thereof, inclusive
have Jurisdiction up to $200. Circuit courts have'general Jurisdiction
of Improvements, save as hereinafter provided, the sum of three
of all common law actions where the amount or value exceeds $200,
thousand dollars.
and Jurisdiction of appeals from Justices' and mayors' courts, and
Homestead In Cities. Every citizen being a householder, and hav
boards of supervisors. Chancery courts have Jurisdiction of the
ing
a family residing In any city. town, or village, shall be entitled
administration of estates of deceased persons, of minors' business and
to hold, the land and buildings owned and occupied as a residence by
other probate matters, and of all matters in equity. Appeals may be
such person, not to exceed In value, save as hereinafter provided,
taken to the supreme court from any final Judgment of the circuit
three thousand dollars, and personal property, to be selected by
oourt. and from the chancery court, except In suits for not more than
him, not to exceed In value two hundred und fifty dollars, or the
$50 originating In the Justice's court. Suits of equitable cognizance
articles
specified as exempt to the head of a family.
Improperly brought In the circuit court are transferred to chancery
Homestead exemption may be Increased to $3,000 In value by
oourt. and vice versa No suit dismissed because being of an equitable
filing for record In chancery clerk’s office a declaration claiming as
nature It Is Improperly brought In the circuit court and e converso
exempt certain property.
Creditor’ Bills may be filed under general Laws to subject equi- i
No property is exempt as against purchase money or for labor per
table assets and in aid of execution at law. Such bills may, under the ' formed on it or material furnished therefor. Money loaned at rates
itaiute. be filed to subject property of a debtor fraudulently conveyed
of interest not exceeding 6 per cent is exempt from taxation
without a ludgment and return of nulla bona; and this whether com
Foreign Corporations may do business and sue and be sued as
plainant's debt is due or not. No bond is required unless a sequestra
In case of domestic corporations. (See Corporations.) Foreign
tion is desired.
corporations doing business in the State without recording their
Curtesy and Dower. Both abolished since 1880.
charters are subject to fine; and all contracts are null and void.
Sales of merchandise otherwise than In usual course of business and
Deeds. (See Conveyances.)
sales of entire stock of goods in gross presumed fraudulent and void as
Depositions in civil cases, on written or verbal Interrogatories;
to creditors, unless 5 days hefore sale, seller make complete inventory
ten days' notice to opposite party. If such party Is absent and has
and the purchaser made demand of seller for name, address and amount
no attorney, filing Interrogatories ten days sufficient. The officer
claim of each creditor, and the purchaser notified personally or by
■ball swear the witness to testify the truth, and shall Impartially ■ of
mail each of creditors of prased sale and of cost price of merchandise
examine him on the Interrogatories. The testimony shall be fairly j and
the price to be paid therefor.
written down by the officer or witness, or by a disinterested person In
In case of destruction of stock of merchandise by fire, on which there
the presence of, and shall be subscribed by the witness. Depositions
Is
insurance,
holder of policies to notify creditors he owes for merchan
then certified, and transmitted by mall or other safe and convenient
dise of his loss and amount of insurance carried, within 5 days.
manner to the court where the same are to be used. Officer's cer
Fraud
and
Fraudulent Conveyances. (See Attachment, Bills
tificate prima facie evidence of hls character.
of Lading, Limitations. Creditor’s Bill.)
Descent and Distribution. Estates of Inheritance, real and
Garnishment
on Judgments or in attachment. Binds debts or
personal desce-nd. 1. To children aDd their descendants per stirpes
property ot debtor In garnishee's hands.
2. To brothers and sisters and father and mother in equal parts and
(trace. Abolished.
their descendants by representation. 3. I o the next of kin according
to the civil law. Except among brothers and sisters there is uo
Holidays are Jan. 1, Feb. 22, April 26. June 3. July 4, first Monday
representation among collaterals. Advancements must be brought into
In September, fourth Thursday In November, and December 25.
hotchpot. No distinction between children of the whole blood and
Instruments falling due on a holiday are payable on the next succeeding
those of the half blood, except that children of the whole blood are
business day. Instruments falling due on Saturday are to be presented
preferred to those of the half blood in equal degree. Where there is
for payment on the next succeeding business day except that instru
no one to inherit property escheats. Illegitimates Inherit from the
ments payable on demand might at the option of the holder be pre
mother and from ner other children and her kindred. Children of j sented for payment before twelve o’clock noon on Saturday when that
Illegitimates and their descendants inherit from brothers and sisters
day is not an entire holiday.
of their father or mother and from grand parents. But children of '
Homestead owned and occupied by husband living with wife cannot
Illegitimates do not inherit from any ancestor or collateral kindred if
be sold or encumbered unless the wife Joins in the conveyance. The
there De legitimate heirs of such ancestor or collateral kindred, in the [ same
Is true as to husband if wife owns homestead. (See Exemp
same degree. Exempt property of husband or wife descends to sur
tions )
vivor and children as tenants in common.
Husband and Wife. The disabilities of coverture are abolished,
Dower and Curtesy have been abolished since 1880.
as are dower and curtesy. Husband and wife may contract with
and sue each other, but contracts for compensation for services ren
Evidence. In the main common law rules apply. Parties and
interested persons competent; except against decedent. Affidavit to , dered to each other are void, if husband reDts wife's land, mules,
open account entitles to judgment, unless defendant denies under ' etc., and does business In hls own name. It will be deemed the business
oath. Warehouse receipts and bills of lading conclusive evidence In [ of the wife as to those without notice, unless the contract be recorded.
Transfers between are void as to third persons unless recorded. (Se»
favor of a bona fide holder that the property was received by the
also Married Women. Wills, and Homestead.)
Issuer. (See also Accounts and Affidavits.)
Insolvency. No general Insolvent laws, but Insolvent estates of
Executions in circuit court issue within twenty days after the I
adjournment ot court unless otherwise ordered by the plaintiff, and > decedents are divided among creditors pro rata.
the county In which the corporation shall do business.
1792
BANKING AND COMMERCIAL LAWS—MISSOURI
Id case of Insolvency partnership property Is applied first to partner
ship debts, and e converso.
Inteiest.
Legal rate 0 per cent per annum, and Is exempt fron
any taxes, but parties may contract in writing for 8 per rent, when
more is stipulated or collected all interest is forfeited. When above
20 per cent interest and principal forfeited and payments forfeited.
Judgments enrolled become lien> on defendant's property wltblt
the county. A Junior Judgment creditor may obtain priority as te
property levied on by him. If. aftei ten days' notice, the senior Judg
ment creditors fall tq issue executions and point out the property
Lien of Judgment continues seven years.
Jurisdiction. (See Courts.)
Liens. Lien of an enrolled Judgment, of mechanics and material
men. of landlord and laborer on agricultural products. Innkeeper's
and stablekeeper's lien. The seller of goods may enforce Hen 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, aud
this Is good even as against a subsequent bona Ode purchaser, with
out any writing or record.
Limitations. Open accounts, accounts stated, and verbal con
tracts. express or implied, three years: all other contracts, six years
awards of arbitrators, six years; Judgments aud decrees reudered In
another state against resident of this, three years; rendered In this
seven years, real actions, ten years. Actions to recover property
sold under order of chancery court must be brought within two years,
where possession Is taken and purchase money paid In good faith
When the legal title to property or right In action Is in an executor,
guardian, or other trustee, beneficiary, though under disability, li
barrel I when trustee is barred Action against administrator or
executor on claim against person deceased limited to 4 years from date
of qualification of such administrator or executor. Statute does not
apply to suits on notes or evidences of debt of banks or other moneyed
corporations An acknowledgment or new promise must lie in writing
Statute does not run during fraudulent concealment, nor against Infant
or person non compos mentis nor against a convict in actions for
assault etc., until after release, nor against State, county, municipality
or any political subdivision of S’ate
Married Women retain their estate., common law disabilities of
eoverture abrogated: have capacity to make contracts and do all
acts In reference to property Dower and curtesy abolished. Hus
band and wife must Join In conveying or encumbering homestead
(See also Husband and Wife and Descent.)
Mortgages and Trust Deeds do not lake effect as to creditors or
purchasers In good faith and without notice until they are delivered
to the clerk for record; with power of sale are foreclosed by sale la
pais: without power of sale, by suit In chancery court, and after fore
closure there is no redemption. (See Chattel Mortgages.)
Notaries. Have power to administer oaths, take acknowledgments
and to protest notes and bills. (See Conveyances.)
Notes and Bills. Uniform Negotiable Instruments Law adopted
and now operative.
Partnership. Few statutory provisions. Governed by general
law. In case of Insolvency, partnership property must go to pay
firm debts, and e converso. Provision made for limited or special
partnerships.
Powers of Attorney. May be acknowledged or proved and
recorded as deeds. May be revoked In like manner. Conveyances
of land or other property under powers of attorney are valid
Redemption. No redemption from sales under mortgage, execu
tion. or other Judicial sale. Two years allowed for redemption of
Land sold for taxes, saving to minors and persons non compos mentis
a like period after removal of disability.
Replevin lies to recover personal property wrongfully withheld
from the owner The property may be restored to defendant on bond.
If he declines to bond, plaintiff may do so. if neither does, a claimant
of the property may give the bond and receive possession. Damages
may be assessed for wrongful taking or detention.
Taxes. Personal property is assessed once a year; real estate
every two years, and taxes constitute a prior lien, l-and delinquent
■old on first Monday of April. Redemption within two years, on
payment of all taxes, costs. 25 per cent damages, and 5 per cent on
amount paid. Infants and persons of unsound mind may redeem
within two years after removal of disability, on paying the value of
permanent Improvements put on the land after two years from date
of sale.
Trust Companies. Provision for such companies with general
powers—to administer all trusts, make bonds and the like. (See
Banks.)
Warehouse Receipts. (See Bills of Lading.)
Wills executed by anyone twenty-one years old, of sound mind
As to land. If not wholly written and subscribed by testator, must be
attested by two subscribing witnesses. A nuncupative will iof per
sonalty) may be made during last sickness of testator at habitation,
or where testator has resided ten days next before death, or where
arson Is taken sick from home and dies before return, mast be proved
y two witnesses Nun-cupative w ills 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 of property by will except that religious or
charitable trusts or bequests void. Provisions made for renouncing
will by surviving husband or wife In certain cases. Probated In com
mon form may be contested within two years. One who kills another
cannot take under his will.
S
SYNOPSIS OF
THE LAWS OF MISSOURI
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Sanford B. Ladd Fsq. Attorney at Law,
Kansas City. (See Card In Attorneys* List.)
Acknowledgments. Acknowledgments of instruments affecting
real estate may be before one of the following courts or officers. 1.
Within this State, some court having a seal, or some Judge. Justice or
olerk thereof, a notary public, or some Justice of the peace of the
oounty In which the real estate la situated 2. Outside of thia State
and within the United States, any notary public, any court having a
seal or the clerk of such court, or commissioner of deeds. 3. Without
the United States, any court having a seal, the mayor or chief officer
of any city or town having an official seal, any minister, consul or
officer of the United States, or notary public having a seal. The
official should certify that ‘•before me personally appeared..................
ind ..................bis wife, to me known to be the persons described In,
md who executed the foregoing Instrument anti acknowledged that
they executed the same as their free act and deed.*’
Actions. There Is In this State but one form of civil action the
practice being under a code. A non-resident plaintiff must Ole the
written undertaking of some resident tor costs.
Administration of Estates. The probate court in each county
aas Jurisdiction of the settlement of the estates of deceased persons.
Claims presented to the court for allowance within six mouths after
the grant of letters are preferred over those presented later Claims
not presented within one year trom the granting of letters are barred.
Letters are granted 1 To the husband or wife 2. To those
sntltled to distribution, or one or more of them. If after the explratlon of thirty days after death of deceased, such persons do not, on fivo
lays' notice, appear and qualify, letters may be granted to any other
persou. Non-residents cannot be executors or administrators, nor
may non-resident executors or administrators maintain an action In
this State.
Aliena. Aliens or alien corporations may not acquire, hold or own
real estate except such as may be acquired by Inheritance or In the
jrdlnary course of Justice In the collection of debts Real estate
aoquired by an alien creditor at foreclosure sale must be disposed ot
within five years.
Arbitration. Parties to a controversy may submit the same to
arbitrators, and their award be confirmed by a court and Judgment
rendered thereon.
Arrest. No person can be arrested under civil process.
Assignments. Voluntary assignments must be for 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.
Attachments. The writ may Issue when the debtor Isa non-resi
dent: or conceals himself so that the ordinary process of law cannot
be served; or, has absconded or absented himself from his usual place
of abode In this State, so that process cannot be served. or. is about to
remove his property out of the State with intent to defraud, binder, or
delay his creditors; or. is about to remove out of the State and change
his domicile: or, has fraudulently conveyed, concealed, or removed
his property, or Is about to do so. to hinder or delay his creditors' or,
has failed to pay the price of any article which he was bound to pay for
upon Its delivery, or has fraudulently contracted the debt: or. where
the cause of action accrued out of this State and the defendant has
absconded or secretly removed his property Into this State; or. where
the damages sued tor arise Trom 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.
Banks are organized under a general law. The cash capital must
not be less than $10,000 nor more than $5,000,000. and In cities of
150.000 or more, not less than $100,000. The entire capital must be
subscribed, one-half thereof paid up on organization, and the other
half within one year. Directors must be residents of this State. The
receipt of deposits with knowledge of the fact that the bank Is In falling
olrcumstances, Is punishable by fine or Imprisonment, and officers
and agents consenting to the creation of debts with such knowledge,
are Individually responsible therefor. Not more than 25 per cent of
Its capital stock must be loaned to any Individual or corporation,
barge 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 of banking shall be subject to the strict supervision of
the State Ranking Department.
Conditional Salts of personal property, unless recorded, are void
as to subsequent purchasers In good faith and creditors.
Conveyances. A person may convey title to lands although not
in possession, and although the same be In adverse possession.- The
signature of 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 of corporations. The
use of the word “heirs" in a deed is not necessary to create a fee
simple. The statute abolishes estates tall and converts an estate
tail into a life estate for the first taker with remainder in fee simple
to the heirs of his body. The words “grant, bargain and sell" are
employed In the granting clause of a warranty deed: by statute tbose
words constitute express covenants that the grantor was seized of an
indefeasible estate in fee simple; that the real estate was Iree 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 and
his heirs. Title, subsequently acquired by the grantor in a warranty
deed, will immediately pass to the grantee without further convey
ance. An estate of freehold may he 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 tenancy.
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.
Corporations arc formed under general law. In the case of manu
facturing and most other business corporations, the capital must be
not less than $2,000 nor more than $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 to
exceed 6 per cent annual dividends. Cumulative voting Is permitted.
Directors must not lie less than three nor more than twenty-one- three
of them must he citizens and residents of the State. A stockholder
having paid for his stock in full is subject to no further liability. The
amount of the bonded indebtedness cannot, in any event, exceed the
amount of the authorized capital stock. The bonded indebtedness
cannot be increased nor the capital stock increased or diminished
except with the consent of persons holding the larger amount in value
of the stock. Two-thirds in value of the stock may apply to the cir
cuit court for a decree for the winding up of the business.
Corporations owng no debts may also be dissolved by unanimou
vote of all shareholders.
A cor, oration pays an annual franchise tax equal to one tenth of
one per cent of the par value of its outstanding capital stock and
surplus.
The Genera! Assembly of 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 stats
a copy of its charter with a statement of the proportion of its capital
stock Invested In Missouri and pay certain tees. It then receives a
BANKING AND COMMERCIAL LAWS—MISSOURI
license io do business In tbe State. Tt 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 tine 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 busl
ness In this State must have a public office In the State, where books
Bhall 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.
Courts. Circuit' ourts have original lurtsdlctlon In all cases of law
and e uity an ho d two or more ter s in each year in each county.
Jurisdiction of the settlement of e tate of de eased person is ve ted
in a Pro ate ourt in each countv. justices of the eace have jur.sdict on up to $250: in co unties and c ties having over 50,000 an I less
than 200.000 pop lation up to $300: in townships having n ore than
200 000 an I less than 400.000 po dilation up to $500; in cities o over
300’000 po. ulat on up to $500; n c ties of n ore than 300,000 in some
cases $600. Appeals lie from ju gment- o’ Ju ti e and the 1 ro ate
Court to the ' Frcuit ' ourt. T here are three appellate courts in the
state to which a.n eals lie rom the rc i t ( o.rts in all ca es twith
certa n e ce t o is), involving not more tha l $7,500: in all other cases
appeals lie from the Circuit c ourt to the supreme Court.
Days of Grace are abolished. (See Negotiable Instruments.)
Depositions. 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 ludge, justice of the peace, notary publlc.clerk of a court,
mayor or chief officer of a city or town having a seal of office, and If out
of the State by any officer appointed by authority of the laws of this
State »o take depositions, a consul or commercial representative ot
the United States having a seal, or mayor of any city or town having a
seal, or any Judge, Justice of the peace, or other Judicial officer, or a
notary public. They may be taken upon written Interrogatories, but
this Is not 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 he first made
when It Is offered at the trial.
Descent and Distribution of Property. The real and persona)
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 he no chil
dren or their descendants, father, mother, brother or sister, nor tbelr
descendants, then to the husband or wife: If there be no husband or
wife, then to the grandfather, grandmother, uncles and aunts, and
their descendants In equal parts. 4. If there be no children or their
descendants, father, mother, brother, sister, or their descendants,
husband or wife, grandfather, grandmother, uncles, aunts, or their
descendants. then to the great-grandfathers, great-grandmothers, and
their descendants. In equal parts, and so on, In other cases without end
passing to the nearest lineal ancestors and their children, and their
descendants In equal parts. Posthumous children Inherit. When
there are collaterals of the half blood, they Inherit half as much as those
of the whole blood. Lineal descendants In equal degree take per
capital, but where part of them are dead and part living, the Issue of
those dead take per stirpes. When a wife shall die without any child
or other descendants In being, capable of Inheriting, her widower shall
be entitled to one-half tbe real and personal estate belonging to the
wife at tbe time of her death, absolutely, subject to the payment of
the wife's debts, and the widow takes a like share of the estate of het
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.
Dower. Dower In real estate Is as at common law, but the widow
has the right, at her election, to choose certain portions of her hus
band's estite asolutely. In lieu of dower. A widow may renounce
provisions In a will In lieu of dower and elect to take absolutely certain
portions of the estate. No conveyance by the husband or sale under
Judgment or decree will bar dower. The estate by the curtesy exists
as at common law.
Executions. Unless motion for new trial Is filed within four day*
after Judgment, execution issues Immediately. Real estate must be
sold during a session of the court which rendered the Judgment. Sales
of real estate must be advertised for twenty days; of personal property
for ten days. Execution sales are for cash No execution Is a Hen
upon personal property until actual selz.ure thereof. It may Issue at
any time within ten years from the rendition of the Judgment. Deeds
to the purchaser are made at once by the sheriff, no confirmation of
sale being required.
Exemptions. The homestead of the head of a family Is exempt.
In the country to the extent of 160 acres not exceeding In value $1,500,
In cities of 10.000. eighteen square rods, not exceeding In value $3,000
In cities of 10.000. thirty square rods not exceeding in value $1,500 in
towns of less than 10,000. ten acres, not exceeding In value $l,50o.
The exemption continues to the widow and to the children until (heir
majority There are also exempt, when owned hy the head of a family,
ten hogs, ten sheep, two cows, and certalD farm Implements: two work
animals spinning wheel, loom, and small quantity of hemp. ffax. and
wool' wearing appaiel: $100 In household and kitchen furniture
mechanic s tools; provisions on hand tor family use Bible- and other
books used In the family. Lawyers, physicians, ministers, and
teachers have the right to select professional books In lieu of other
property allowed to them and doctors may select medicines. Id lieu
of certain of the exempted articles any other property, not exceeding
$300 In value, may be selected.
Frauds and Perjuries. No executor or administrator Is bound by
his promise to pay any debt or damages out of his own estate, and no
person is liable upon any agreement to answer for the debt, default, or
miscarriage of another, or made In consideration of marriage, or for
the sale of lands or any Interest In or lease thereof for a longer time
than one year, or on any agreement that Is not to be performed within
one year unless the agreement sued on. or a memorandum thereof.is In
writing signed by the party to be charged or his authorized agent and
no contract for the sale of lands by au ageDt Is valid unless the author
ity of the agent is In writing • Every gift, conveys nee. 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 of the larger part or the whole of a
stock of merchandise pertaining to vendor's business otherwise than
In the ordinary course of 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 of the consideration for
the sale, the amount of the indebtedness of the vendor, and the names
of his creditors. All creations of trust In lands must be In writing
exoept those resulting by Implication of law.
1793
Garnishment. Garnishees may be summoned undet 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 auacbed 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 he garnished. Public corporations and their officers are exempt
from garnishment, as are also administrators and executors prior to
an order of distribution.
Holidays. January 1, February 22, May 30, July 4, the first
Monday of September, any general primary election day. any general
state election day. any thanksgiving day appointed by the President
or Governor, and December 25 are public holidays; and when any of
them fall on Sunday, the next day is such holiday. Eebruary 12,
known as ‘Lincoln Day" and October 12, known as "Columbus Day"
are also holidays but are not such as respects commercial paper.
Husband and Wife. (See Married Women.)
Inci.me Tax. A tax of one an I one halt i er entuni is levied upon
the annual income of individuals and corporations, with provisions
for cer.ain deduct.ons anu exemptions.
Ir heiitance'I ax. A tac is levied upon the estates of de -ea-ed
pe sons vary ng from one to five percent de ending on the relation
o the i eneficiary to the ecease i. an i e ceeding those rates when the
value ol the pro erty teceive . by a beneficiary eccee s $20,0(1(1 with
cer ain e eruptions in favor of uifferent classes of persons mentioned
in the law.
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 tbe Hen Invalid Part
ies may contract that Interest may be compounded, but not oftener
than once In a year.
Judgments. Judgments and decrees rendered by a court of record
are liens on the real estate of the person agalusl 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 oi any
other county becomes a lien upon real estate in such county The
lien of a judgment continues for three years, and may be revlt ed 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 an 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 tha
ludgment bears the rate of the contract.
Liens. Statutory provisions exist for mechanics’ liens. Hens of
keeping horses and other animals, Hens of Inn and boarding-house
keepers, liens of contractors, material-men, and laborers against
railroads.
Limitations. Actions must be commenced within ten years:
1. I pon any writing for the payment of money or property. 2.
Oh any covenants of warranty or seizin contained In any deed. 3
For recovery of lands. 4. For relief not otherwise provided for.
V\ lthln five years. 1. Upon contracts, express or Implied, except
Judgments or decrees of court. 2. ( pon a statutory liability other
than a penalty or forfeiture. 3. Trespass 4. Replevin and for
any other Inlury to the prison or rights of another not arising on con
tract and not otherwise enumerated 5 For relief on the ground of
fraud Within three years: 1. Against public officers for acts of
official commission or omission 2. For a penalty or forfeiture where
the action Is given to a party or a party and the State. \\ lthln two
years Actions for libel, slander, assault, battery, false Imprisonment,
or criminal conversation. Statute does not begin to run against a
resident of this State who is absent at the time It accrues until hla
return. If he depart after It accrues, the period of his absence Is not
counted Acknowledgments or promises, to take a case from the
operation of the statute, must be In writing. Judgments are pre
sumed to be paid after ten years A cause of action barred by the
laws of the State In which It originated Is barred In this State.
Limited Partnership. May consist of one or more general and
one or more special parti era. Special partners contributing a speci
fied amount In cash to the capital are not personally liable for the debts
of the partnership and have no power to transact Its business A
verified statement of the terms of the partnership must be filed with
the recorder of the county. There can be no limited partnership for
the business of insurance or banking.
Married Women. A married woman Is deemed a femme sole so
tar as to enable her to carry on or transact business on her own account
to contract and be contracted with, to sue and be sued, to enforce or
have enforced against her property such Judgments as may be rendered
for or against her. and may sue or be sued at law or in equity with or
without her husband being Joined as a party. Her real estate and
personal property cannot be taken by any process of law for the debts
of ber husband. Neither the rents, Issues, or products of her real
estate, nor the Interest of her husband In her right In any leal estate
can be levied on for his debts.
Mortgages. Mortgages on real estate are executed like deeds
Husband and wife must join to bar dower or homestead, except to
secure purchase money. The common form of real estate security
is a deed of trust with power of sale in the trustee upon default in
the payment of the debt Sale is at public auction upon twenty
or more days’ public notice, as may be provided in the instrument
The trustee executes deed to the purchaser. There is no redemption
from sale unless the holder of the debt is the purchaser, in which case
the debtor may redeem within one year if he gives written notice at
the sale or within the preceding ten days of his purpose, and within
twenty days after sale give security for payment 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 of debt secured by mortgage or deed of trust must be produced
to the recorder when satisfaction Is entered. No foreign corporation
or individual may act as trustee in any deed of trust unless there be
named as co-trustee a Missouri corporation or individual citizen of
this state, and the resident trustee must be a party plaintiff in an
action ro f >ree|rm<*
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 ths
mortgagor In the same manner as conveyances of real estate or unless
the mortgage or a copy thereof be filed In the office of the recorder of
the county of the mortgagor, or, where he ts a non-resident of tbe
State, then In the office of the recorder of the county in which the
property Is situated Every such mortgage ceases to be valid after
the expiration of five years from the filing of the same.
Negotiable Instruments. The General Assembly of this State
has codified the law of negotiable Instruments by the passage of "A>
1794
BANKING AND COMMERCIAL LAWS—MONTANA
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 adorned
by many other states In accordance with the recommendation of the
American Bar Association. It became effective in Missouri June 10.
1005.
Power of Attorney. An Instrument of writing containing a power
to do any act or business. Including the conveyance of real estate, as
agent or attorney for another, when acknowledged In the same form
as required for deeds, may be read In evidence without further proof
of Its execution.
Probate Law. (See Administration of Estates.)
Protest. (See Negotiable Instruments.)
Replevin. Goods or chattels wrongfully taken or retained may be
replevied by the owner or party entitled to possession. Affidavit
must be Bled 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 fall In hls suit, defendant
recovers Judgment against plaintiff and the sureties on the bond for
the value ot the property and damages.
Taxes. State and county taxes are usually paid In November
or December. If not paid, they are regarded aB delinquent from the
first day of the succeeding January. State and county taxes for each
year are a lien upon the real estate from the first day of June of the
preceding year. Delinquent state and county taxes are collected by
suit. Municipal taxes are payable according to the provisions of the
charters or general laws by which they may be governed. In some
cases the payment of delinquent city taxes may be enforced by a sale
of the property without suit: In others, suit must be brought before
sale can be made. There Is no redemption from a sale under a Judg
ment for state and county taxes. Redemption Is usually allowed la
a sale tor city taxes under the provisions of the particular charter.
Wages. (See Garnishments: Exemptions.)
Wills. Every male person twenty-one years of age may, by hls last
will, devise all of hls estate, real, personal, and mixed, and every male
over the age of elghteenj years may bequeath hls personal estate.
Women ot eighteen years of age and upward, married or unmarried,
may devise their real estate and bequeath their personal property. A
will must be In writing, signed by the testator or some person by hls
direction In hls presence, and must be attested by two or more com
petent witnesses subscribing their names to the will In the presenoe of
the testator. If after making the will the testator shall marry and die
leaving Issue of the marriage living at the time of hls death, or born to
him after hls 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 must be presented for probate to the probate
court of the county In which was the place of abode of the testator.
Wills may be contested within two years after the probate thereof by
petition to the circuit court of the county. Real estate In this State
may be devised by last will executed and proved according to the laws
of this State. Personal estate may be bequeathed according to the
laws of the state or country In which the will shall be made.
SYNOPSIS OF
THE LAWS OF MONTANA
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by Charles E. Pew, Attorney at Law, Helena.
Abstracters. 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.
Acknowledgments of Instruments may be taken In this State.
1. Before supreme court Justice, district Judge, Justice of the Deace,
clerk of any court of record, county clerk, notary public, or U. 8. Com
missioner. 2. Outside Montana in the United States. Before the
Justice, judge or clerk of any court of record of the United States or
any state or territory: a commissioner appointed by the governor for
that purpose, a notary public, or any other officer authorized to take
acknowledgments. 3. Outside United States before minister, com
missioner or chargd d'affaires, consul, vice-consul or consular agent of
the United States, a judge of court of record, commissioner appointed
by governor or notary public. In all cases acknowledgment must be
taken within jurisdiction of officer taking.
Must be In substantially following form: "State of .................. .
ecunty of
........ as. On this........... day of............ 190. ., before
(name and quality of officer) personally appeared .............. known
to me (or proved on oath of.......... to be the ‘person whose name Is
subscribed to the within Instrument, and acknowledged to me that
he tor they) executed the same.” Same for married women. In
case of corooration same to star, then "president or vice president
?or secretary or assistant secretary) of the corporation that executed
the within instrument and acknowledged to me that such corporation
executed the same." and In case of attorney in fact whose name is
subscribed to the within instrument as attorney in fact of.......................
and acknowledged to me that he subscribed the name of. .,.. •••••••
thereto as principal, and his own name as attorney-in-fact.
Outside
of county must be accompanied by certiflcate of county clerk.
Administration of Estate Is had In district courts. Notice to
aredltors published four weeks. Claims not presented In four months
after first notice. If estate $10,000 or less, or ten months If over
$10,000, are barred.
,
_
. ,
. ,
,
Letters of administration granted to: 1. Surviving husband or
wife or oompetent appointee. 2. Child. 3. Father or mother. 4.
Brother 5 Sister 6. Grandchild. 7. Next of kin who Inherits.
8 Publlo administrator. 9 Creditor. 10. Any person legally
competent.
hen seveial claim right and equally entitled, court
appoluts. preferring males to females and whole blood to half blood.
Affidavits may be taken or oaths administered before any Judicial
officer clerk of any court, county clerk or notary public In this State:
in any other state before a commissioner appointed by the governor,
otary public, or Judge or clerk of any court of record having a seal;
i a foreign country before an ambassador, minister, consul, vlceeonsul. or consular agent of the United States, or Judge of a court of
’'u’henVa'keuVefore a Judge In any other state or foreign country,
the existence of the court, signature and official character of the Judge
must be certified by the clerk of such court, under Its seal.
Aliens and Denizens have same right as citizens to acquire, use
and dispose of mining property and real estate In connection there*
with.
S
Arbitration. Any controversy except over title to real property
may be submitted to arbitration by a written agreement to that effect
filed In court and may be made an order of court. When made an
order of court is Irrevocable; otherwise It Is revocable at any time
before award. An agreement to arbitrate cannot be speolhoally
enforced.
Arrest. Defendant in a civil action may be arrested when about
to leave the State or conceal hls property, with Intent to defraud
creditors, and in certain other action where fraud, wilful Injury, or
wilful violation of duty, or wrongful conversion of money or property
by a public officer or a fiduciary, or for fine or penalty.
Assignments. Voluntary assignments for benefit of creditors
allowed If without conditional preference, not oo-ercelve. Impartial,
without reservation for fraudulent benefit of assignor, and does not
oonfer power upon assignee to delay execution of the trust, nor exempt
him from liability for negligence or misconduct. Is under partial
supervision of the district court.
Attachments. Writ of may be had at the time of Issuing 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.
Banks. No special provisions regarding national banks except
that all banks, organized under laws or this State or the United States,
shall be taxed for value of its stock In county, town, city or district
where located and not elsewhere, regardless of residence ot stock
holders.
Banks ot 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 or county where located. Each director must
own at least ten shares of the bank's stock. Bank may deal In real
estate only as Is necessary to the proper transaction of Its business,
or In realizing upon securities. Directors must declare semi-annual
dividend out of net earnings, and al same time make report to State
auditor of assets and liabilities, and publish once Stockholders are
liable for banks* debts to extent of stock held by them. Their
liability continues six months after a transfer of the stock. Failure
to comply with requirements for sixty days forfeit franchise.
The total liability of any person, firm, corporation, or company to
any such bank for money borrowed shall at no time exceed fifteen
per cent of paid in capital and permanent surplus: this does not apply
to discount of bills of exchange drawn upon existing values or of com
mercial paper owned bv person negotiating same.
Each such bank must keep on harm tunds equal to 20 per cent ot
Its Immediate liabilities half cash and half balances due from solvent
bank. One hundred dollars to five hundred dollars penalty for
making new loans while reserve below the proportion. Laws provide
for state examiner, who visits and examines financial condition of
banks yearly. Banks charged certain fees for State examiner fund.
Any employee, officer, or agent of any bank or person doing a bank
business, who receives deposits knowing or having reason to know
that such banking Institution Is unsafe or insolvent. Is guilty of felony,
and Is liable to Imprisonment for one to twenty years.
Banks may be dissolved by district court upon voluntary 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
be subscribed In cash before beginning business. May do a general
deposit and loan business. Stockholders liability to same extent as
In other banks
Foreign banking corporations may establish branch banks In this
State upon compliance with certain special laws.
Bank Is not liable for payment of forged or raised check, unles»
claim Is made within one year after check Is returned paid to deposi
tor. (Session 1900.) Liable for non-payment of check without
malice only to amount of damages proven.
Contracts. Contracts of 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.
Conveyances. Title to property of 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
a grant, unless expressly limited to a less title in the deeu Cove
nants that the grantor has made no previous deed to any other per
son. and that the premises are free from Incumbrance by the grantor
or any one claiming under him are Implied from use of word 'grant.
A married woman Joining with her husband In any instrument
affecting real property is bound thereby the same as though single
If duly acknowledged by her. Instruments affecting real property
may. If acknowledged, be recorded, and such record Imparts notice
to the world. (See Acknowledgments.)
Corporations are formed under the general statute, except 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 l>y 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
Slate; 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 slock or making dividends out of
capital stock are jointly and severally liable therefor; stockholder may
examine books; written transfer or power of attorney to sell, and
delivery of certificate passes title, between parties and against, creditors;
may be attached on books of corporation. Every domestic corpora
tion having a capital stock must file report in county clerk’s office,
wdthin twenty days after December 31st of each year, showing amount
of capital stock, amount paid In cash, and amount paid in property,
amount of existing debts, ami names and addresses of 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 ille. and that default Is not due to hls
neglect. Subject to State tax of 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
ol state and In county where Intend to do business, copy of charter
and verified statement of president and secretary, showing name.
! capital stock, amount paid In money or property, assets and of what
consist, and their actual cash value, and amount of liabilities: also a
consent to be sued and appointment of agent for service of process
! and acceptance of same. Must pay to Secretary of State filing fees
; upon proportion of business and assets in Montana to total business
BANKING AND COMMERCIAL LAWS-MONTANA
and assets or corporation, ir capital increased or diminished must file
certificate thereof with secretary of state and county clerk and refusal
to do so forfeits right to do business in State. Must within two months
after April 1st, file report like verified statement just mentioned. in
county clerk's office, and copy with secretary of state. Can have no
greater rights or privileges than domestic corporations.
Foreign corporations doing business in this State are made subject
to the Jurisdiction of the courts ol this State the same as domestic
corporations and their stock Is made attachable In this State. (Ses
sion lstoy.) May 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 of one per cent on net
income over $10,000.00 on business done in Montana. (Laws 1917.)
Courts. District courts have original Jurisdiction In law and
equity where over $50 Involved: have probate and criminal Juris
diction. City police courts ol petty criminal jurisdiction. Justices
of peace limited to $300, petty criminal cases; cannot try title to land,
nor questions of constitutionality. Appeals He from Justice to dis
trict and from district to supreme court. Supreme court appellate
court of last resort, except has original Jurisdiction In applications for
habeas corpus and similar writs.
Days of Grace.
None.
Depositions of resident may be taken when witness Is a party In
Interest, or resides out ot 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 he procured at the trial
Examination may be upon oral questions or by agreement upon
written Interrogatories, lu case of non-resident within United States,
judge may issue commission upon five days' notice, if parties do not
agree upon person, to-any Judge, or Justice or commissioner. If out
of United States, may be directed to a minister, embassador, consul,
vice-consul or consular agent of the United States In such country,
or to such person as may he agreed upon. Examination of non
residents unless otherwise agreed, must be by written Interrogatories.
Descent. Intestates’ real and personal property, subject to pay
ment of debts, descends as follows: If widow or surviving husband
and one child, half to each, if widow or surviving husband, and more
than one child or one child and lawful issue of one or more deceased
child, one-third to husband or wife and two-thlrds to such children
and Issue per stirpes; if no child living, two-thlrds 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 „helr children per stirpes. If no Issue nor
husband or wife, entire estate to father and mother equally, or to
survivor. If no Issue lather, 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 and
the Issue of one or more deceased children, and any such child die
unmarried under age, his share goes to children of same parent or
their issue per stirpes If no husband, wife or kindred, the property
escheats to State. Illegitimate child Is heir of person who 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.
Power. Curtesy abolished. Wife endowed of third of lands
owned by husband during marriage. Equitable estates and contracts
Included. No dower In lands mortgaged for purchase price as against
mortgagee, nor In lands conveyed to him by way of mortgage unless
he acquire absolute title during lifetime. Devise or bequest bars
widow's dower unless otherwise expressed in will, but she may elect
between devise or bequest and dower, within one year In writing.
If husband die leaving no children- nor descendants of children, widow
may have, absolutely, one-half of all his estate after payment of
debts, if she elect within two months after payment of debts A
woman may be barred of dower by Jointure with her assent before
marriage, consisting of freehold in lands of life, at least, beginning at
death of husband. Dower is not affected except by wife's deed.
Execution unless stayed by order of court, may Issue at once upon
rendition of judgment; becomes Hen on personalty upon seizure by
officer holding writ All property sold to highest bidder. Defendant
or creditor may redeem from sale ol reai estate within year, or sixty
days after previous redemption.
Exemptions. To head of family, homestead to value of $2,500.
and descends as such to surviving wife or husband and children.
Head of family allowed wearing apparel, chairs, tables, books, at
$200, all necessary household goods and certain domestic animals and
provisions for three months; 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 ot 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
ot 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. Statute of. Agreement of executor or administrator to
answer for obligation of decedent out of his own estate; agreement
not to be performed In one year; promise to answer for obligation of
another, unless It Is made an original obligation of promissory; an
agreement upon consideration of marriage, except mutual promise to
marry; for sale of personalty at a price of over $200. unless part of
price paid or part of goods accepted, except at auction sale when
auctioneer enter sale in sale book; lease lor over one year; for sale of
realty, or authorizing broker or agent to sell land for compensation;
la 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 ludlcial 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
1795
tatives or successors In Interest, and against any person upon whom
the estate of the debtor devolves In trust fot the benefit of others than
debtor All declarations of trust In lands shall be In writing, except
resulting trusts or trusts created by Implication or operation of law.
Husband and Wife. Husband must support wife If able; if not,
she must assist; husband has no curtesy; wife has dower: neither
can be excluded from others dwelling; may contract with each other,
or any other persons, the same as though unmarried: cannot alter
legal relation by contract, except may agree to Immediate separation,
mutual consent being sufficient consideration; may hold property
jointly or in common; wife may sue and defend alone; all property of
wife is her separate property, and she can convey, or execute power of
attorney thereon without husband's consent. Her deed must be
acknowledged. Filing inventory of her personal property exempts
same from claims against husband, except for necessaries for herself
and her children. Wife must support husband out of her property
If he is infirm. Wife may dispose of her property by will, except that
such will must not. without his written consent, deprive husband of
over two-thirds of her real estate or two-thirds of her personal property;
wife may make contract, etc., the same as though single. If husband
negle.ct to support his wife, bills for necessaries sold her can be collected
from him. but not when separated by consent, unless support stipu
lated In such agreement.
Interest. Eight per oent on judgments and damages. In other
cases 8 per cent in absence of agreement. May contract for not more
than 12 per cent per annum.
Judgment of courts of record (Including federal oourts of oounty)
If transcript of such judgment if filed In district court are lien on
realty in county for six years; realty In another county becomes sub|ect to lien upon filing of transcript of Judgment In such county.
Abstract of Justice court Judgment becomes lien on realty In any
oounty where tiled 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 todglng house keepers have lien on baggage of guests brought
Into such house. One performing service with respect to personal
property. Including teed and care ot animals, has a Hen upon such
personalty or animals. Person furnishing another seed grain has lien
upon crops produced thereby up to 700 bushels, to secure payment of
purchase price. Verified lien must be filed in the office of the Clerk
and Recorder. Such lien Is prior to all other encumbrances.
Thresbermen have lien upon crops threshed for services in threshing
subject only to seed lien Verified lien must be filed in the office
or the Clerk and Recorder.
*
Limitations of Actions ActloD upon Judgment ot any court of
record, action to redeem from mortgage when mortgagee Is In posses
sion. ten years: actions for recovery of real estate or ntesne Dtofits
thereof, ten years, hut ltt such cases statute does not run against
who at the time title first descends or accrues is a minor, or
fterson
nsane, 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 sherllf. 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 ot 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 of civil prisoner; against
municipality for violation of 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 of claim by
county commissioners, six months.
All cases not. specifically ment'oned. five years. Statute does not
run during absence of defendant from this State.
Loans, Farmers loan department established.
Married Women.
(See Husband and Wife.)
Mortgages of real estate are executed same as deeds. TTusband
and wife must Join to bar dower or homestead, except purchase money
mortgages. Non-judicial sale under power valid. Lien good for
eight years after maturity of debt, and may be renewed by affidavit
for eight years more. As to any mortgage now existing as to which
eight years or more has elapsed same may be renewed for eight years
by filing affidavit in six months from February 17. 1913
Chattel mortgage must be duly acknowledged, and be accompanied
by 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 of debt not exceeding two years and sixty days. May be re
newed by filing affidavit within sixty days after expiration of two
years, stating amount still due, and alleging good faith, etc.
Negotiable Instruments. Must be payable In money and must
eontain an unconditional promise to pay a sum certain on demand or
at a fixed or determinable future tliiie: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 "1 promise to
pay" ad signers are lolntly and severally Hable 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 oxerdue It Is
payable on demand: may be payable to two or more payees Jointly,
or one or more of several payees; absence or failure of consideration a
defense against one not a holder In due course and partial failure a
defense pro tanto. One not a party to Instrument placing a signature
In blank before delivery becomes an endorser. Every endorser
engages that on due presentment It shall be honored or that he will
pay the amount to holder or any subsequent endorser who may be
compelled to pay: no days of grace; when maturity falls on Sunday
or holiday payment Is due on next business day. If due on Saturday
must be presented on next business day. but If payable on demand
holder may present same before noon on Saturday. Fraud and cir
cumvention In procuring execution of Instrument Is a defense against
any holder.
Presentment. It Is not necessary to charge one primarily liable 11
payable at special place ability and willingness to pay It there at
maturity Is equivalent to a tender, If not on demand It must lie pre
sented on day it falls due. il on demand theii 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 afTect original Instru
ment In hands ol Innocent holder in due course.
Acceptance. Unconditional promise in writing to accept a bill
before or after drawn is good In favor ot all who take it upon faith
thereof for value. The holder may decline a qualified acceptance and
treat the bill as dishonored: ir 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; hill of exchange does not operate to assign funds In hands
ol drawee and he Is not liable unless he accepts.
BANKING AND COMMERCIAL LAWS—NEBRASKA
1796
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.
Replevin. The plalntltl In an action to recover possession of per
sonal property may replevy tbe same at the time of issuing summons
or at any time before answer, upon making affidavit showing that the
plalntllf 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 plalntltl, 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 tbe return of the property by giving an undertaking
In double the value of the property. If such undertaking Is not given
wlthtn five days from the replevy the property must be turned over
to the plaintiff.
Taxes. All kinds of property, except pubtlc 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 and not
more than twenty-eight days aftei the first publication sale of the
real estate Is made, subject to redemptllou wit hin 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 lax
deed at the end of the thirty-six months but must give thirty days
notice to the owner or occupant of the property. Taxes are assessed
to tbe party In whose name the property stands of record on J,he first
Monday In March of each year. An inheritance tax of $5 for every
5100 worth of property must be paid by anyone, not a blood relation.
Inheriting sucb 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 tie made before deed hy payment of taxes, 10 pet
cent penalty. 50 cents tor 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 1909.1
Wills. 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
resence and by his direction, must subscribe his name thereto. 2
he 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 hy 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.
SYNOPSIS OF
THE LAWS OF NEBRASKA
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by Montgomery. Hall & Young, Attorneys at Law. Omaha.
(See Card In Attorneys' List.) Acknowledgments. (See Deeds; may be made in this State
before a notary, judge or clerk of any court, justice of the peace,
county clerk or deputy, register of deeds or deputy, deputy clerk of
district or county court in name of his principal, secretary of state,
under seal, if tbe officer have one. If acknowledgment taken in any
other state or territory, it must be in accordance with the laws of
this State or of the state or territory where taken, and must be before
some court of record- or clerk or officer holding seal thereof, or a
commissioner of deeds appointed by the governor of this State for
that purpose, or notary public, or justice of peace; if before justice
of the peace, acknowledgment must be accompanied by certificate
of his official character under hand of clerk of some court of record,
to which the seal of such court shall be affixed. If the officer have
no seal, then the acknowledgment must have attached thereto a
certificate of the clerk of a court of record, or other proper certifying
officer of the district or state where taken zander the seal of his
office, showing that the person taking the acknowledgment was
at the date thereof, such officer as be is therein represented to be,
that he Is well acquainted with the handwriting ol such officer; that he
believes the said signature of the officer to be genuine, and that the
deed or other Instrument Is acknowledged In accordance with the laws
of such state, district, or territory, if acknowledgment taken In a
foreign country. It may be acknowledged before any notary public,
minister plenipotentiary, extraordinary or resident, charg 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 sea's Acknowledgements, attestations, and affidavits before
U. 8. army officers in foreign places are valid if officer authorized by
laws of United States.
Actions.
Must he brought by real party In Interest, except as to
administrator, trustee, etc. However, assignees of choses in action
assigned for purpose of 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.
Administration of Estates. (See Decedents.) County courts
have exclusive Jurisdiction over estates. Administration Is granted
to widow or next of kin. or both, or some one selected by them but It
unsuitable, or If they tall tor thirty days after death of a party to apply
for letters, same may be Issued to a creditor, or to some one selected
by the Judge. Executors and administrators must give bond, as
required by the coun, 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 he obtained from the district court. Debts of decedent
are a lien upon all real estate. If no administration within two years
any heir of deceased or any person having acquired real estate from
deceased or heirs may obtain from county court determination of
heirs of deceased degree of kinship and right of descent of real property
of deceased.
Affidavits. (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 tact must be
stated In the affidavit. If made out of State and the officer has no seal,
affidavit must have attached thereto a certificate ot clerk of a court
reciting authority of such officer.
Allens. Non-resident aliens and foreign corporations may not own
or hold real estate In Nebraska but the widows and heirs of such aliens
who held lands prior to March lfi. 1889. nave ten years to dispose of
their interests, and those who acquired their ownership prior to tnat
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, anu, pursuant or subsequent to such, may pur
chase such real estate, hut shall dispose of same, within ten years from
time of acquiring title. These provisions do not apply to railroads nor
to real estate upon which buildings are erected and maintained for
manufacturing purposes, nor to that within the corporate limits of
cities and towns. Aliens who declare their Intention to become citizens
of the I nlted States thirty days before an election, conformably to the
laws of the Vnlted States on siiblect of naturalization, are electors,
same as citizens. Aliens are not eligible to hold public office or official
, position.
Arbitration. Instead of submitting a controversy to a court,
parties may agree In writing to arbitrators, whose decision, after conflp■nation by the court, shall stand as a verdict. Judgment may then
be entered and execution issued.
. A,fr5’'l'8, A-rrest and Imprisonment In civil actions for debt are
abolished.
Assignments. (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 tiled for record In the county clerk's office, and
If real estate Is mentioned therein. It shall also be recorded In the
register of deeds office, and within thirty days It shall be recorded Is
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 of head of family void unless executed and
acknowledged by husband and wife.
Attachments. 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 (he
following grounds: 1. That the defendant is a foreign corporation
or non-resident of the State. 2. lias absconded witn intent to
defraud creditors. 3. Has left the county of his residence to avoid
the service of summons. 4. So conceals himself that a summons
cannot be served upon him. 5. Is about to remove his property,
or a part thereof, out of the jurisdiction of the court with the intent
to defraud his creditors. 6. Is about to convert his property, or
part thereof into money for the purpose of placing it beyond the
reach of his creditors. 7. Has property or rights in action which he
conceals 8. lias 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 of plaintiff's claim, that it is just and the amount
which affiant believes plaintiff ought to recover. No undertaking is re
quired where the defendant is a foreign corporation, or is a non-resi
dent of 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 bonattdo resident of stale for six months
preceding filing of petition. In all other cases plaintiff must give an
undertaking in double the amount of his claim. If 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 of 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.
Banking. 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
of each bank at least twice a year After each examination bank
must pay to state treasurer fee of $15 or more, according to capital
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- Minimum, $10,000; In town of 100 to 500 $15 000500 to 1.000, $20,000 1,000 to 2.00(1, $25,000; 2,000 to 5 000 $35 0005,000 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 municipal 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 rurniture and
fixtures, exceed in value one-third or the furniture and fixtures alone
lopoi cent or the national, stale county and muuiopal ooinls oneof the half paid-up capital. Before commencing business the bank shall
make a detailed statement ot 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 tbe actual
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 their
names and the amount deposited In each, and tbe amount of all other
assets, together with such other Information as the banking board may
BANKING AND COMMERCIAL LAWS—NEBRASKA
require. A summary of such report must be published In some local
newspaper and proof of such publication transmitted to the banking
board, ami such board may call for special reports at any time. Fail
ure to make reports entails a penalty of $50 for each day s delinquency,
and those making false statements In such reports or In the books of
the bank may be punished as felons It Is likewise a felony for a bank
to receive moneys or permit same to be received on deposit when the
bank Is Insolvent to loan to an officer or employe of the corporation
without the approval of a majority of the directors: to carry as assets
any note or obligation of the partnership, member thereof, or Individu
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 such
bank Every stockholder Is liable for debts accruing during hli
ownership of stock, tor an amount equal to the paid-up value of the
shares held, and all shares of stock are assessed In the place where the
bank Is located, whether the owners thereof reside there or not. and
taxes are a lien upon the stock A guaranty fund is provided by
assessments on all state banks based upon the average daily deposits
Claims of depositors and of holders of exchange have priority over all
other claims, except taxes, and, subject to taxes, are first lien on all
assets of bank when bank closed. Bank other than savings bank
shall not permit loans and investments, exclusive of reserve and
banking house and fixtures to exceed fifteen times amount of capital
and surplus. AU state banks in cities of over 25.000 must keep a
reserve of 20 per cent, and two-fifths of the 20 per cent shall be cash
in vaults, but two-flfths of said two-flfths of 20 per cent may be in
Liberty or other U. S. war bonds. Rediscounts and bills payable must
not exceed 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 for purchase of bank
stock above par until banking corporation organized and actually
engaged in banking business. Every bank must have reserve of
15 per cent. One-third of the 15 per cent must be in cash in vaults
of bank.
Bills of Exchange. (See Notes and Bills of Exchange.)
Blue Sky Law. (See Corporations.)
Bulk Sales. (See Sales.)
Chattel Mortgages. Every chattel mortgage, If not accompanied
by an Immediate delivery of the goods and be followed by an actual
and continued change of possession thereof. Is absolutely void as
against creditors of the mortgagor and as against subsequent pur
chasers aud mortgagees In good faith, unless «ueh mortgage, ora copy
thereof, be Hied In the county clerk's office wnere the mortgagor resides,
and if be be a non-resident, then In the clerk's office of the county
where the mortgaged pioperty be situated. Such chattel mortgage
need not be acknowledged unless It convey household goods used In
the family by the husband and wife, or either. In which case It must be
Signed and acknowledged by both husband and wife, the same as real
estate conveyances Verbal mortgages are good between the parties
It Is a felony to transfer or dispose of personal property mortgaged
without procuring the consent of the mortgagee, or to remove same
out of the county with Intent to defraud the mortgagee of hls security
Mortgagor required to give accounting for mortgaged property from
time to time on demand of mortgagee, and to give mortgagee notice
In writing within 10 days after loss or death of mortgaged articles
or animals.
Claims. (See Accounts. Administration of Estates.)
Commercial Travelers. (See Licenses.)
Conditional Sales. A sale or lease of personalty may be made
and title thereto retained In the vendor until the purchase price be
fully paid, oi condition complied with, by having the contract of sale
or lease In writing signed by the vendee or lessee, aud then filing copy
of same In the county clerk's office, with affidavit of vendor, hls agent
or attorney attached thereto, giving names and full and true Interest
of parties anil description of the property Such sale or lease shall be
Invalid at expiration of live years as against purchasers In good faith,
or Judgment of attaching creditors, unless the vendor or lessor shall,
within thirty days prior to the expiration of the Uve years, repeat the
filing, which must be made annually thereafter. These sales are valid
as between the parties and as against Judgment or attaching creditors
and subsequent purchasers aud 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
party to be charged. Every agreement by Its terms not to be per
formed within one year from the making thereof, every special promise
to answer I'or the debt, default or misdoings of another, every agree
ment, promise, undertaking made upon consideration of marriage,
except mutual promise to ruarry, and every special promise of an
executor or administrator to answer damages out of his own estate,
and every contract for the sale of goods and things in action, for
the price of $50, or more, shall be void unless note or 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 of per
sons inay associate and Incorporate for the transaction of any lawful
business. Including the construction of canals, railways, bridges, and
other works of Internal Improvements Every corporation, as such,
has power- I To have succession by Its corporate name. 2. To
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 of the corporation shall
require, and allow them a suitable compensation therefor. 7. To
make by-laws not Inconsistent with any existing law. for the 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 Incorporation
and have them Hied In the office of the secretary of state, and domestic
eorporatlons must also file with the county clerk In the county where
their headquarters are located. Banking corporations and building
and loan associations must also flic with State Banking Board. In
surance companies, holding companies and all companies under con
trol of state auditor must also die with that department. The ar
ticles of incorporation must fix the highest amount of indebtedness
of liability to which the corporation shall, at any one time, be sub
ject. which must in no case exceed two-thirds of 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 of business, for four weeks. Such
115
1797
notice shall contain: 1. The name of the corporation. 2 The
principal place of transacting its business. 3. General nature of
the business to be transacted. 4. The amount of capital stock author
ized. and the time and conditions on which It is to be paid in. 5.
The time of commencement and termination of said corporation.
6. Highest amount, of indebtedness or liability to which corporation
is at any time to subject itself 7. By what officers the affairs of
the corporation are to be conducted. The notice required must
be published within four months from the time of filing such articles.
Two-thirds of its members may dissolve corporation unless other
wise adopted in articles of Incorporation. Copy of by-laws of 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, of the amount of all existing debts of the cor
poration, signed by the president and a majority of the directors. If
corporation shall (all to do so. stockholders of corporation shall he
lolntly and severally liable for all the debts of the corporation after
exhausting Its assets, and for all debts contracted before said notice
IB given, to the amount of the unpaid Individual subscription of any
stockholder to capital stock, and In addition thereto the amount of
oapital stock owned by such Individual.
All corporations, whether Incorporated under laws of Nebraska or
tny other State, must procure a state occupation permit from secre
tary of state, annually, hefore they may do business here Annual
fees for such permit as follows based upon capital stock oi ..^nie
companies, or on that portion of capital stock of foreign companies
which represents Nebraska business Capital of $1,000 to 310,000
fee of 35; 310,000 to 820.000, 310; 320.000 to 330,000. $15; 830.000 to
$40,000. 820; 840.000 to 850.000. 825; 350,000 to $80,000, $30;
860.000 to 870.000, $35; $70,000 to $80,000, $40; $80,000 to $00,000,
$45; $90,000 to $100,000. $50; $100,000 to $125,000. 880; $125,000
to $150,000. $70; $150,000 to $175,000. $80; $175,000 to $200,000. $90;
8200,000 to $225,000, $100; 3225.000 to 8250.000, $1 10: $250,000 to
8275,000, $120; $275,000 to $300,000. $130; $300,000 lo $325,000,
8140; $325,000 to $350,000, $150; $350,000 to $400,000, $180, $ 100.000 to $450,000, $170; $450,000 to $500,000. $180; $500,000 to
$1100,000, $200; $800,000 to $700,000, $250; $700,000 to $800,000,
$300; $800,000 to $900,000, $350; $900,000 to $1,000,000. $400;
81 000,000 to 310,000,000, $100. and $75 additional for each million
or fraction thereof over $1,000,000, $10,000,000 to $ 15,009.000,
$1,200; $15,009,000 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 (lrst lien on all property of the corporation. Fee for domestic
corporations payable .July 1st. for foreign corporations, during month
of July. Fifteen per cent penalty for 30 days delinquency after
3 months wilful default, attorney general on request of secretary of
state must bring action to forfeit charter. Foreign corporation
must appoint resident agent on whom process may be served.
Blue Skv Law. prohibits sale of most corporate securities except
upon permit by State Trade Commission. Detailed sworn statements
required. Permit fee, $10, if capital does not exceed $25,009. other
wise $25; for each agent, one permit, one dollar per year. State trade
commission inv&stigates and gives information but does noi recom
mend securities. Commission must not exceed 15 per cent of par value
organization and promotion not more than 2 per cent.
Costs. <See Security for Costs.)
Courts. tSee Actions, Appeals.) Juvenile courts are established
tor treatment and control of dependent, neglected and delinquent
children. Justice and county courts are for all practical pui poses,
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 ot the district court In each
county are fixed by the presiding Judge at the beginning ol 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. Municipal courts are provided for cities.
Curtesy. Abolished 1907. tSee Decedents.)
Days of Grace. (See Notes.)
Decedents. (See Administration of Estates.) If a party leaves
no will hls property descends subject to his debts as follows
1. One-fourth to the husband or wife. If survivor is not the parent
of the children 2. One-third to the husband or wife. If survivor Is
parent of the children. 3. One-half to husband or wife. If one or no
child living. Residue to blood relatives. 4. If no husband or wife
surviving, to the children In equal shares and lawful issue of deceased
child by representation. 5. If no Issue, to father and mother or
survivor. 8. 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 li
also made for surviving children dying under age unmarried Claims
against estates must he presented within time fixed by probate court,
of which notice Is given by advertisement, and is not less than six
months nor more than two years after letters of administration Issue.
Dower and curtesy are abolished.
Deeds. (See Acknowledgments, Married Women) must be signed
In presence of one witness and acknowledged. Grantor's seal not
required. Deed conveys all Interest of the grantor, unless a contrary
Intention is expressed. Deeds and conveyances must correctly state
actual consideration, where it exceeds $100.
Depositions may be taken at any time after service of summons,
and may he 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 iri the event of the action, and thia
fact should he stated In hls certificate attached to the deposition If
taken out of the State, and the officer has no seal, a certificate under
the great seal ot the State, or of.a clerk of a court of record under seal
should be appended, stating tha*t the officer was, at the time of taking
the deposition, properly authorized.
Descent and Distribution. (See Decedents.)
Distress for Rent. No authority for It.
Dower. Abolished 1907, (See Decedents.)
Employers Liability Act. in force. Applies to employers having
five or more employes. Provides for medical and hospital services
and medicines, and schedule of benefits pavable weekly. Maximum
for death, $5,250; for injuries not fatal, $4,500.
Estates. (See Decedents.)
Executions (see Judgments, Proceedings In Aid of Execution
Mortgages) may issue at any time after Judgment. If no stay bond
be (lied, and until five years thereafter. Land sold upon execution or
decree of court may be redeemed by the debtor at any time before
confirmation of such sale. A stay of execution Is allowed by giving
bond with approved sureties as follows: In district court within
twenty days, on judgments not exceeding $50. three months; $50 to
$100. six months; exceeding $100, nine months. In Justloe and
1798
BANKING AND COMMERCIAL LAWS—NEBRASKA
oounty oourts, 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.
Exemptions. A head of a family has exempt from levy and sale
certain personal property and household furniture enumerated In tbe
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 he situated, or, at the option of the party,
two contiguous lots In any incorporated city or village. Such exempt
property shall he 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 persona! 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 noi 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.
Foreign Corporations (see Corporations. Allens) may become
domestic by filing with the secretary of state a true copy of charter oi
articles of association, together with a certified copy of resolution
adopted by the board of directors accenting the provisions of the
act of the legislature of Nebraska, Chapter 42. Laws of IKS1.); must
make written report to Secretary of State annually in July in form
prescribed by secretary of state and pay fee same as occupation tax
for domestic corporations; must on or before September 15th. of
each year, file a statement with attorney-general of State, sworn to.
showing capital stock. Its market value, bow paid, namas of oilicers.
directors and agents, amount paid In dividends and rate of percentage
thoreof, all stock held in other corporations and value of such stock,
amount of its own stock held by other corporations and value thereof
and amount of trust stock held by other corporations. Does not
apply to insurance companies or common carriers. Must appoint
agent and file name with secretary of state and with register of deeds
In county of principal place of business. Service may be had on
such agent or on state auditor. Secretary of state charges fee of
$50.00 for keeping record of agent. Penalty $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 whoso products are sold
In Nebraska must have a resident agent on whom service in legal
action can be had. Sale by jobbers of goods of foreign corporations
not so represented is prohibited.
Fraud. (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.
Garnishment. (See Attachment.) Writ may be Issued before
Judgment In attachment proceedings. After judgment and after
execution returned unsatisfied, writ will Issue by bling affidavit for
same. No bond required after Judgment.
Holidays are January 1st. February 12th, February 22d, April 22d.
May 30th. July 4th. first Monday in September. October 12th
Thanksgiving, and December 25th. No court can be open, nor can
any judicial business be transacted on a holiday or Sunday, except,
first, to give instructions to a jury then deliberating on their verdict;
second, to receive a verdict or discharge a jury; third, to act as mag
istrate in a criminal proceeding; fourth to grant or refuse a temporary
Injunction or restraining order. If any such fall on Sunday, the next
day shall be a Holiday.
Homestead. (See Exemptions.)
Husband and Wife. (See Decedents, Divorce, Evidence, Exemp
tions. Married Women, Marriage.)
Infancy. Males under twenty-one and females under eighteen
are Infants. County court appoints guardians, but If Infant over
fourteen years, may nominate his own. Infants' real estate may be
sold or mortgaged to obtain funds tor maintenance by permission of
district court.
Insolvents. (See Assignments.)
Interest. Legal rate Is 7 per cent and contract rate 10 per cent.
Judgments draw same rate as specified In the instrument on which
Judgment obtained, otherwise 7 per cent. A contract Is not avoided
by usury, but In action thereon all payments are deducted from the
principal and plaintiff recovers only the balance, without Interest and
pays all costs.
Judgments. (See Actions. Appeals, Exemptions, Executions,
Interest.) Those recovered in district court are ifens upon real estate
of debtor from first day of term at which rendered, except those by
oonfesslon and those rendered at the same term at which action com
menced are liens only from date of rendition. Judgments of county
and justice courts become liens from date of filing transcript in the
office of the clerk of the district court. Judgments may be made a
lien upon lands in other counties by filing transcripts in the office of
the 'lerk of the district court in such counties. A judgment becomes
dormant in five years and lien upon rea) estate is lost if execution not
Issued within that time. After dormancy may be revived by certain
proceedings. Dormant judgments cannot be revived unless action to
revive he commenced within ten years. In Judgments by contesslon
cause of action must be stated In the Judgment or In a writing filed as a
pleading. Deficiency judgments may he recovered in mortgage fore
closure cases, if the deficiency be such that it may be recovered at law.
Jurisdiction. (See Actions. Judgments.)
Justices of the Peace. (See Courts. Judgments, Actions.)
License. (See Insurance Agents.) Commercial travelers are not
required to take out a license. There Is a provision In the code
requiring 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.
Liens. (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 of party, showing amount due, nature of the contract
description of property, names of the parties: and If the claim arise
out of a written contract, or If a note or other written evidence has
been taken in payment of the account, copies must be attached. An
original contractor must file such statement within four months from
the time of furnishing such material or performing the labor, a 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 same premises are of equal priority and pro
rate In the proceeds of sale of property. If sold under foreclosure thereof
Limitations. Actions brought to recover real property or foreolose 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 property, upon contracts not In wrttlng
upon a liability created by etaiute other than a forfeiture or penalty,
for injuries to rights not arising out of contract, for relief on the
ground of fraud, and all other actions not specifically limited by
statute, must be commenced within four years. Actions upon a
specialty, agreement, contract in writing, promissory notes, etc., and
foreign judgments, must be commenced within five years. Actions
upon official bonds of executors, administrators, guardians, sheriffs,
or other officers, and upon statutory bonds, must be commenced with
in ten years. If parties under disability, causs of action does not
commence to run until such disability removed. Actions for damages
for causing death must be brought within two years.
Limited Partnership. (See Partnerships.) Articles thereof
j must be In writing, acknowledged by the parties and recorded in the
office of the county clerk of every county where partnership shall have
a place of business. The special partner la not liable beyond the
amount contributed to the partnership foods, but has nothing to do
with the management or conduct of the ouslness; otherwise Is liable
as general partner. Special partner's name Bhall not appear In the
firm.
Married Women (see Decedents. Evidence, Exemptions. Mar
riage) may contract, bargain, sell, and convey their separate property
I In the same manner as may 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.
Mortgages. (See Actions, Ackhowledgments, 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 of assignment of mortgage It Is safer to record
the assignment. If note secured by mortgage Is negotiable assign
ment need not be recorded. Release may be hy separate Instrument
or upon the mortgage records In register or deed's office, and If mortgaee. after mortgage fully paid, neglects or refuses for seven days to
Ischarge sueh mortgage, he Is Hable to a penalty of $IO<) and all actual
damages suffered by the other party. Mortgages can only he fore
closed by suit, and after foreclosure suit commenced no action can be
maintained at law upon the debt, unless authorized by the court and
If action be first commenced at law, cannot foreclose the mortgage
until Judgment obtained and execution returned thereon unsatisfied.
After decree of foreclosure of mortgage obtained, defendant may stay
further proceedings for nine months by filing a request for stay In
the office of the clerk of the court within twenty days after such
decree entered. Sueh stay Is equivalent to redemption period allowed
In other States, and owner may 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.
S
Negotiable Instruments.
(See Notes.)
Notes and Bills. All notes, bonds, or bills of exchange, except
bank checks and Instruments payable on demand, are payable at
times fixed therein, without grace; are not negotiable 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
dav Party purchasing negotiable paper before maturity, without
notice, take same free trom equities between original parties. Uniterm
negotiable Instrument law Is in force.
Partnership (see Limited Partnerships) must adopt and sign
articles of partnership agreement showing firm name, nature and place
of business, name and residence of each member, and file same In the
office of the county clerk of the county where business Is located
.Neglect or refusal to comply with this requirement entails oenalty.
but does not affect legality of business transacted. Partnership may
sue and be sued In the firm name, and It is not necessary to set forth
In the pleading, or prove at the trial, the names of the persons com
posing the firm, but In such event plaintiff must give security for costs
Pleadings. (See Actions.)
Power of Attorney to convey real estate must be executed and
acknowledged same as deeds and may be recorded.
Practice. Regulated by code which Is patterned after Ohio.
Probate. (See Courts, Decedents.) County court has exclusive
original jurisdiction of all probate matters.
Promissory Notes. (See Notes.)
Proof of Claims.
(See Decedents. Accounts.) Same rules ol
evidence govern as In civil actions.
Protest. (See Notes.)
Replevin. Party may recover possession of personal property
*our 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 return tbe proper
ty or its reasonable value to the defendant In case Judgment for a
return be rendered.
Revenue. (Sec Taxes.)
Sales. (See Conditional Sales.) Merchant cannot sell In bulk
without notice to creditors.
Security for Costs. Non-resident plaintiff must give security for
costs or furnish cash bond.
Statute of Limitations. (See Limitations.)
Stay. (See Executions, Judgments, Mortgages.)
Suits. (See Actions.)
Summons. (See Actions, Attachments. Divorce, Service.)
Taxes. 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 date of sale certificate. Inheritance tax runs from 1 per cent
upward. For all real estate taxes delinquent one year or more, the
county may sell the property by action in court.
Torrens System. Provision Is made for registration of land
title, under Torrens System, upon application of owner.
Trust Companies are authorized to act as executors, admlnls
trators, receiver, agents, etc.
Trust Deeds are seldom used and are treated as mortgages.
Wills. (See Decedents.) Every person of full age and sound
mind may dispose of his property by will, which must be signed by
the testator, or under his express direction, by some one In his presence
and 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
BANKING AND COMMERCIAL LAWS—NEVADA
«hall 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
Witnesses. (See Evidence.)
Workingmen's Compensation.
(See Employers Liability.)
SYNOPSIS OF
THE LAWS OF NEVADA
RELATING TO
BANKING AND COMMERCIAL USAGES
Prepared and Revised by Atres &
selors at Law, Reno.
Attorneys and Coun
(See Card In Attorneys’ List.)
Gardiner.
Acknowledgments. Every mortgage, deed, or other conveyance,
conveying or affecting real estate, shall be acknowledged or proved
and certitted as follows: ir within this State it may be a judge or
Clerk of a court having a seal, notary public, county recorder, or
justice of the peace. If without this State, and within the United
States, by a judge or clerk of a State. United States, or territory court
having a seal, a commissioner of deeds for this State, or some notarv
public or justice of the peace in his county, a justice's certificate
which Is attached to a deed to be recorded out of his county, must
have a certificate of a clerk or a court of record of his county as to
his signature and official character. If outside of the United States,
the acunowledgment can be had oefore a judge or clerk of a court
having a seal, or a notary public or a minister, commissioner, or counsel
of the United States, the certificate of the officer taking the acknowl
edgment shall be annexed to or endorsed on the instrument, and shall
be under nand and seal except in cases of justices of the peace which
shall be under the hand of such justice of the peace and certified as
above stated. The party executing and acknowledging the instru
ment must be known or proved by oath of 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 of a man and has the same effect as if she were
unmarried. The form of acknowledgment by an individual shall be
substantially as follows:
State of Nevada, County of..................... On this.................. 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 of....................... State of........................
......................known (or proved) to me to be the person described In
and who executed the foregoing instrument, who acknowledged to
me that he (or she) executed the same freely and voluntarily and for
the uses and purposes therein mentioned.
In witness whereof 1 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 of.........................
State of......................(or other official name of the officer who takes
the acknowledgment).
Form of acknowledgment of a corporation.
State of Nevada, County of...................... On this......................day
of........ .
A. D............... personally appeared before me a notary
public (or other officer or judge as the case may be) in and for the
County of........................State of......................... (name of party who
executes and acknowledges instrument) known (or proved) to me to
be the president (vice-president or secretary) of the corporation that
executed the foregoing instrument and upon oath did depose that he
is the officer of said corporation as above designated, that, he is ac
quainted with the seal of said corporation and that the seal affixed to
said instrument Is the corporate seal of said corporation ; that the signa
tures to said instrument were made by officers of 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 my hand and affixed my
official seal the day and year in this certificate first above written.
.............................. . Notary Public in and for the County of ........................
State of......................(or other official name of the officer who takes
the acknowledgment).
Form by attorney-in-fact:
State of Nevada. County of...................... On this.................. 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 of...................... State of Nevada (name of 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 of............... and acknowledged to me that he sub
scribed the name of said..................thereto as principal, and his own
name as attorney-in-fact, 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 of....................
State of..................(or other official name of the officer who takes the
ack no w 1 edgmen t).
By the laws of the State of Nevada, any acknowledgment hereto
fore or hereafter taken or certificate thereof made without this State
either In accordance with the laws of this State or in accordance with
the laws of 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 of acknowledgment of conveyance:
A certificate of acknowledgment of any conveyance or other Instru
ment in any way affecting tlie title to real estate or personal property,
or the proof of execution thereof as provided in the laws of Nevada,
signed by the officer taking the same, and under the seal of such
office, shall entitle such conveyance or instrument with the certificate
or certificates of acknowledgment to be recorded in the office of the
recorder of any county in this Stale provided that any State of United
States contract or patent for laud may be recorded without any such
Acknowledgment or proof.
Actions. (See Suits. Limitations.)
Affidavits. Affidavits taken out of 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 of this State, or a judge Qf a court having a seal attested by
the clerk. If in a foreign country such affidavits shall be taken before
an ambassador, minister, consul, or vice-consul of tho United States,
or judge of a court in such foreign country having a seal. The
genuineness of the signature of the judge, the existence of the court
And the fact that such judge is a member thereof shall be certified by
the clerk of the court, under the seal thereof.
Allens. 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 comply with corpora
tion laws of this State.
1799
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.
Arbitration. Provision Is made by law for the settlement of dis
putes by arbitration, the award of the arbitrators to be filed with the
clerk of the district court and docketed the same as a Judgment In
civil action.
Arrest. A fraudulent or absconding debtor, or one who conceals
his property, or removes or disposes of it with Intent to defraud his
creditors, may be arrested on affidavit of the fact made surety In not
less than $500 being given by the plaintiff. (See Attachment.)
Assignments and Insolvency. Except as affected by the
national bankruptcy act of 1898, the statute respecting assignment
is in force: Insolvent debtors may be discharged from their debts
by complying with provisions of insolvent laws. An assignment of
insolvent debtor, not in compliance with insolvent laws, is void as
to creditors.
Attachment. Writ of attachment may be issued with summons,
or at any time afterward on affidavit and bond. In an action upon
a judgment or upon a contract for the direct payment of money, made,
or by the terms thereof payable, in this State, which is not secured
by mortgage, lien, or pledge upon real or personal property, situated
or being in the State: if so secured, when such security has without
act of plaintiff or person to whom given become valueless or insufficient
in value to secure sum due in which case attachment may issue for
unsecured portion or excess of debt over value of 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 of 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 of 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 tjie 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 of the
court shall issue the writ of attachment, upon receiving and filing an
affidavit by or on behalf of the plaintiff, showing the nature of the
plaintiff’s claim, that same is just, the amount which the affiant
believes the plaintiff is entitled to recover, and the existence of any
one of the grounds for an attachment above enumerated, with an
undertaking not less than $500, and an amount equal to one-fourth
of demand, but not exceeding $5,000. In Justice's Courts (See
Courts) bond must be in amount sued for but not under $50.
Banks. State—are regulated and controlled by a comprehensive
general banking law. Amended (1915) to permit State banks to join
Federal Reserve Bank System.
Conveyances. 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 Hied or not. shall be valid tot any purpose whatever, unless both
the husband aud wife execute and acknowledge the same as now pro
vided by law for the conveyance of real estate.
Corporations. The laws of this State are substantially the same
as those of New Jersey. Foreign corporations to transact business
and institute actions in this State must file certified copy of articles
of incorporation with tbe secretary of state and county clerk; also
designation of resident agent. There is no license tax. Stockholders
and directors meetings of Nevada Corporations may be held in or
out of State. There is no "Blue Sky" law. The laws of this State
are generally regarded as most desirable in every way for the formation
of corporations to do business in other states.
Curtesy Is not recognized In this State.
Courts. Jurisdiction. District courts have original, statutory
and common law jurisdiction iu all cases at law and in equity also <n
law. when the title or possession of land or mlCne 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
nnd 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.
Deeds. A deed of quit-claim passes all the title that the grantor
has at the date of the conveyance. A deed of grant, bargain and sals
carries with it the statutory covenant that at the lime that the
grantor executed the deed, he had not conveyed it to any other
person and had placed uo 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 tlie premises herein des
cribed against any and all persons whomsoever claiming the same.”
The law governing and form of acknowledgments is titled under
** Acknowledgments."
Depositions. Depositions may be 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. Deposition!
may he taken out of the Stale upon commission under the seal of the
court upon proper application, or by stipulation of the attorneys.
Divorce. Divorce from the bonds of 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 tlie defendant
shall reside or be found, or in which the plaintiff shall reside, if the
latter be either the county in which tho parlies 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 of marriage continuing to the time
of the divorce.
Second: Adultery, since the marriage, remaining unforgiven
Third: Wilful desertion, at any time, of either party by the other
for the period of one year.
Fourth: Conviction of 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 of the family.
Sixth: Extreme cruelty in either party.
Seventh: Neglect of the husband, for the period of one year to
provide the common necessaries of life, when such neglect is not'the
result of poverty on the part of the husband which he could not
avoid by 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
1800
BANKING AND COMMERCIAL LAWS—NEW HAMPSHIRE
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 he. during all of the period for which residence Is claimed
by him or her; provided, however, should any person absent himself
from the lurlsdlctlon 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."
Dojver is not recognized In this State.
Executions. Stay of Execution : J udgments The laws of Nevada
on these points are similar to those of California (see ante), except
that when redemption is made ol 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.
Exemption. Homestead, $5,000; the earnings of tbe debtor, if
earned thirty days preceeding. if it is made to appear necessary for
the support of the debtor, exempt where debt is for necessaries, or his
family; personal and mining property, tools, implements, etc.,
exempt same as In California Iwhich seej.
Garnishment.
(See Attachment.)
Holidays. Sunday. New Year's Day, Lincoln’s Birthday, Wash
ington's Birthday, Memorial Day, Fourth of July. Labor Day, Octo
ber 12th (Columbus Day) and 31st (Nevada admission day). Thanks
giving, December 25th. and all days oi which a primary or a general
election is held, are non-judicial days and are termed legal holidays
and generally observed as such. Also Arbor day fixed by proclama
tion of governor one month before fixing such date, and is only a
holiday for public schools. Bills of exchange, checks, promissory
notes, and otner negotiable instruments falling due upon auy holiday
are payable the day previous.
Husband and Wife. (See Married Women.)
Interest. Tbe legal rate Is 7 per cent per annum, but parties may
contract in writing for the payment of 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 of interest must
be mentioned in the judgment. Unadjusted accounts do not bear
Interest.
Limitations of Suits. Open or store account and contract not
in writing, four years; upon contract or instrument of writing, six
years; actions concerning real property, except mining claims, five
years; mining claims two years. Judgment, or decree of the district
court—six years; of the justices court—five years. Revivor: Ac
knowledgment or new promise in writing or payment on account.
Judgments become a lien upon real property for two years.
Married Women. All property of the wife, owned by her before
marriage, and that acquired afterward by gift, bequest, devise or
descent, her separate property. In Nevada, under the Btatute of
1873. the wife has absolute power over her separate property, and
may dispose of the same without the consent of ber 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 tbe 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 (he 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 tbe husband
Separate property of wife should be inventoried and recorded, fail
ure so to do raises prima facie presumption property is not her separate
estate.
Mortgages must be recorded. No mortgage of personal property
la valid unless possession Is delivered to and retained by the mort
gagee. or unless the mortage be accompanied by the statutory affi
davit of the mortgagor and mortgagee or some person on their behalf
and is recorded in the county where the mortgagor and mortgagee
reside.
Notes and Bills of Exchange. The uniform negotiable Instru
ment law has been adopted In this State.
Probate. All claims against estates of deceased persons must be
filed within three months after the first publication of the notice of
appointment of the executor or administrator. Estates not exceeding
$2,000 In value. In the discretion of the judge, may be summarily
administered, and In cases of summary administration all regular pro
ceedings and notices are dispensed with, except tbe 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 $500 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.
Suits. Practice Is under a code, and there is but one form of action,
known as a civil action, and commenced by filing complaint with the
olerk 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.
Taxes are a lien upon the property assessed and the real estate of
the owner thereof from the first Monday In March in each year
Suits for delinquent taxes may be commenced by direction of the
oounty commissioners, and there Is redemption of real estate sold at
tax sale In the same manner as realty sold under ordinary execution
Hills. Wills executed out of Nevada are good here if good where
made.
SYNOPSIS OF
THE LAWS OF NEW HAMPSHIRE
RELATING TO
BANKING AND COMMERCIAL USAGES
Revised by
R. 9prino, Attorney at Law, Nashua.
(See Card In Attorneys’ List.)
John
Acknowledgments of deeds or other conveyances of real estate
must be made before a Justice, notary public or commissioner, or In
foreign countries before a minister or consul of the United States. The
signature of the grantor must be attested by one witness.
Actions. Tbe common law prevails as to procedure. Non-resi
dents can institute suit, a resident becoming responsible for costa by
indorsing the writ, or giving bond. Transitory action may Ire brought
In the county where one of the parties resides. If both are non
residents the action may be brought in any county.
Admlnistation of Estates. Administration shall be granted In
the following order of precedence: To the executor named; to the
widow, or any of the next of kin, or to such person as they shall
nominate: to one of the devisees or to a creditor, to such other person
as tbe Judge shall think tit. A non-resident shall not be appointed
unless urgent necessity demands. An ample bond with resident
sureties shall be filed. No suit shall be brought against the admin
istrator within the first year of his administration Claims shall be
presented within one year after his appointment, and no action can
be brought after two years. Actions are not maintainable against
an adrntnlstratoi of an estate, after a decree ol Insolvency Estates
may be administered In the Insolvent course, and then a commissioner
shall be appointed to examine and allow claims. Preferred claims,
to be settled In full are: Expenses of administration, widow's allow
ance, charges of burial, and taxes. Claims for the last sickness shall
be paid in full If there remains anything after paying the preferred
claims. (See Arbitration.)
Affidavits. Affidavits are not admissible In evidence, being ex
parte, but motions are heard upon affidavits presented to the court.
May be made before an officer authorized to administer oaths. (See
Attachments.)
»
• .
«
*
.
,
WVO.
r\L a I IL LI
Illfiy pUrCnflnCi
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 mouths, separate from her husband, she
acquires all the rights of the wife of a native born citizen
Arrest. No female can be arrested In any action founded upon a
contract or upon a conditional sale of clothing: nor can a voter on
election day. or a defendant In a real action. The sheriff Is exempt
from arrest. (See Attachments.)
Assignments and Insolvency. Assignments for benefit of 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.
Attachments 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 liens of builders, contractors
etc., when they take precedence In the order or priority of the lien’
Trustee process (analogous to garnishment In other stales) 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
del'enilant up to $2u are exempt from such process. In actions on
contracts where debt exceeds $13.33. defendant may be arrested on
affidavit of plaintiff tnat he (defendant) has concealed nts property
or ts about to leave the State to avoid payment of hla debts (See
Garnishment.)
Bank. 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 naiiK commissioners.
( he commissioners si,a II on or before
the 1st day of October, annually, file their report with the secretary
of state They shall give In their report a detailed statement of all
the items of expense of each Institution, with the names of the treas
urer and clerks, the salary of each, with the kind and amount of stocks
and bonds hel l by each, with the par value thereof, and the cost and
the market value at the date of examination The cashiers of every
state bank, and every association or partnership formed foi 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 suoh
examination, signed by a committee of the trustees, shall be returned
to the bank commissioners, and a copy of the report published In a
newspaper published In the place where such bank Is established;
or. If there be no newspaper In such place, then in a newspaper at
the nearest place.
Bills of Exchange. (See Notes, and Bills of Exchange.)
Chattel Mortgages. (See Mortgages.)
Collateral. There have been no statutory enactments on thia
subject Pledgee of stock Is not liable as a stockholder, but the gen
eral owner is.
Conveyances. Every deed, and lease for more than seven years,
shall be signed, sealed, attested by one witness acknowledged before
a justice of the peace, notary public, or commissioner and recorded
in the registry of the county whorein the teal 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 tiling to be performed. Administrators, guardians,
and trustees can convey only by virtue of a license from the probate
court. Sheriff s deeds shall give full particulars as to the action, and
shall covenant that he has observed all the requirements of law.
Corporations. Corporations can be chartered by the legislature
voluntary corporations can be formed for any purpose except bank
ing. life insurance, railroading or trading-stamp business. Five per
sons may associate themselves together under written articles of
agreement, which articles shall set forth the corporate name. Its
object, place of business, and amount of capital, which may be any
where from $1,000 to $5,000.000. with the par value of tbe shares at
not less than $25 or more than $500 This agreement shall lie 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 cuntlnue a resident of 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 sell or dispose of any of Its stock at a price leas
than the par thereof. A note is not payment therefor Cumulative
voting is not permitted. Stockholders In all corporations, except
hanks and railroads, shall be Hable tor all the debts of tbe oomuany
until the capital Is fuUy paid, and a certificate under the oath of the
BANKING AND COMMERCIAL LAWS—NEW HAMPSHIRE
treasurer and a majority of the directors shall have been recorded
with the town clerk. Every corporation, except banks, railroads,
and Insurance companies, shall annually. In May, return a sworn
report, signed by the treasurer anil a majority of the directors, ol
Its assets, liabilities, and any assessments, which report, shall be
recorded In the office of the secretary of state. A failure to make such
return renders the officers personally liable tor all the company debts
Courts. The superior court has original Jurisdiction ovei all causes
The supreme court decides questions of law upon bills of exception,
transferred from the superior court, and It holds Its sessions every
month, except July and August. Probate courts have jurisdiction
over estates of deceased persons. Insolvent estates, minors, insane
persons, adoptions, change of names, trustees, and partition of rea
estate- 1 listrlct police courts and! ustlres of the peace have concurrent
jurisdiction with the superior court up to 8100 (except in cities of
50 000 or more population they have civil jurisdiction up to $.">(l(i)
when the tide to real estate is not involved, and can render judgment
upon confession up to $200. The terms of the superior court shall
be held in each year at the times and places following: For the county
of Rockingham, at Exeter, on the third Tuesday of January and the
third Tuesday of April, and at Portsmouth on the third Tuesday of
October. For the county of Strafford, at Dover, on the second
Tuesday of February, and the third Tuesday of September. For
the county of Belknap, at Laconia, on the first Tuesday of March
and the first Tuesday of November. For the county of Carroll, at
Ossipee, on the third Tuesday of May, and the second Tuesday of
November. For the county of Merrimack, at Concord, on the first
Tuesday of April and the first Tuesday of October. For the county
Of Hillsborough, at Manchester, on the first Tuesday of January, and
the first Tuesday of May, and at Nashua the third Tuesday of Sep
tember. For the county of Cheshire, at Keene, on the first Tuesday
of April and the first Tuesday of October. For the county of Sullivan,
at Newport, on the second Tuesday of May and the second Tuesday
of November. For the county of Coos, at Lancaster, on the third
Tuesday of April; at Colebrook, on the first Tuesday of September,
and at Berlin, on the first Tuesday of December. For the county
of Grafton, at Plymouth, on the second Tuesday of May and the
second Tuesday 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 of Grace. None except on sight drafts.
Depositions. The party proposing to take depositions shall give
the opposltt party a four days' notice, of •” hlch the fol.owing is a form
"To A B. C„ of etc., or................att'y of record: Depositions will
be taken at the office of ................In.................. In the County of
............ . and State of................on the . day of............... ,19
.
at ... • o'clock In the.............. noon. In which action......... Is plff
and . .
is deft., to be hsard and tried at the.............. Court to
be holden at.......... .In the County of ...............on the .... day of
..19... Dated at.............. this .... day of ...............19.
‘...................... ............................................... Justice of the Peace ”
One extra day’s notice to be riven, up to twenty days, for each
twenty additional miles. They are taken before a justice of the
peace or a commissioner. They caD 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.
Enclosed is the deposition of.................... to be used In the action
•f.................... vs. ...
Sealed up by me..........................
Justice of the Peace.”
They should then be mailed to the clerk of the court where they are
to be used No deposition can be used In a Jury trial unless taken
before the Tuesday next preceding the Tuesday on which the term
commenced.
A copy of the notice with the affidavit of service must be annexed
to the deposition. The following is a form for the caption of the
deposition:
"State of.......................... ) ».,
County of ...................... '
Personally appeared before me, a Justice of the Peace within and for
•aid County, the within named ....................... on the
day of
................ . 18. ., at .... o’clock In the.......... noon, at the office
oi ' .................................................. Street, In ................ In said County,
and made oath that the annexed deposition by him 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 be used
{j, the ........................ Court, In an action now pending (or to be
entered) In said Court, wherein of. etc., is plff. and of. etc.. Is deft.
The taking of said deposition was begun at .... o'clock In the
............ noon of said day, and was continued until finished. The
laid ............. was (not) present and did mot) object.
Dated at said...................... this .... day of..................19..........
..............................
Justice of the Peace."
Descent of Property. The real estate subject to dower or curtesy
and homestead shall descend In equal shares as follows: 1. To the
children and to the legal representatives of such of them as are dead.
2. If there he no Issue, to the father and mother In equal shares. If
both are living, and to the father or mother. If one of them Is dead.
3, If there be no Issue or father or mother. In equal shares to the
brothers and sisters or their representatives. 4. To the next of klD
in equal shares. If a person dies under age. his estate, derived by
descent or devise from his father or mother, shall descend to his
brothers and sisters, or their representatives. If any. to the exclusion
of the other parent. No representation allowed beyond the degree
of brothers' and sisters’ grandchildren The personal estate shall be
distributed as follows: 1. To the widow, her share according to
law 2 To the same persons who would take as In the case of
realty. The widow Is entitled. In addition to her dower and 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 $5,000 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 $5,000,
the distribution Is made according to the other provisions of the law,
as above set forth. A surviving husband has the same rights In his
wife's estate that a wife would have In her husband s estate. (See
Dower.)
Dower. A widow Is entitled to dower In the real estate of which
her husband died seized, excepting In land not under cultivation or
In a wood lot not used In connection with a farm. The dower may
be assigned by metes and bounds, and the widow has an undivided
net third part of the rents and profits until dower Is assigned. She
may be endowed with so much of the real estate of her late husband
as will produce a yearly Income equal to one-third of the total Income
Evidence. Persons are not excluded from testifying because of
Interest,, except where the party Is an executor, administrator or
1801
guardian of Insane, and the subject of tne testimony occurred during
the life of the deceased, or prior to the ward's insanity, unless the
executor, administrator, or guardian of the Insane person electa to
testify, or, when It Is clearly shown to the court that Injustice maybe
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 viola
tion of marital confidence. In criminal proceedings, respondent may
testify In his own behalf. If he elects, but not otherwise Conviction
of an infamous crime does not bar the party from giving evidence but
bears upon his credibility The rules of common law govern generally
the admissibility of evidence.
Executions may be taken twenty-four hours after Judgment, and
are returnable before Justice's and police courts In sixty days, before
superior court, at the next trial term of court. Writ of possession
Issued sixty days after Judgment A review may be granted by the
court when Injustice appears to have been done through accident,
mistake, or misfortune. Real property taken under execution may
be redeemed within one year.
Exemptions. Homestead to the value of $500; necessary apparel
and 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 lleeces. one
cooking stove and Its furniture, provisions and fuel to the value of
$50. and one sewing machine: one yoke of oxen, or a horse, when
required for actual use; domestic fowls not exceeding $50; one pew,
one lot In a cemetery, and hay not exceeding four tons.
Fraud. Aside from criminal frauds, the superior court. In the
exercise of Its equity functions, has Jurisdiction over frauds.
Garnishment. Known to our law as trusteeing. Any personal
action except trespass, defamation of character, and malicious prose
cution. 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.)
Holidays. (See table, page 13.)
Husband and Wife. They may make ante-nuptial agreements
which can be In lieu of dower, homestead, and distributive share. (See
Arrest. Allens, Descent of Property. Dower, Divorce, Married Women,
and Wills.)
Interest. At the rate of 6 per cent per annum. If any person,
upon any contract, receives 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 6
per cent per annum. Interest upon unpaid taxes Is at the rate ot
lb 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. Lpon current accounts Interest commences from data
of demand for payment, unless controlled by the custom of trade,
which Is a question of fact to be determined by a trial thereof.
Judgments are not a lien upon real estate, except when 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 If ths
mortgagor pay the amount of the Judgment within two months, ths
Judgment shall be void Judgments are rendered od the last day of
the term of the court where the action has beeD disposed of
Mens. Besides the common law lien the legislature has provided
for a Hen upon all the effects and baggage of a boarder: also lien for
tbe pasture of borses, 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, snail have a
lien thereon And a person having a lien on personal property, wbea
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.
Mmltntloii!* of Suits. Accounts and simple promissory notes six
years after maturity, judgments, sealed Instruments, and notes secured
by mortgage, twenty years Time of debtor's absence from the State
Is excluded. Verbal acknowledgment and promise to pay Is sufficient
to revive the debt. Action against administrators limited to two
years.
Married Women retain all property owned by them before mar
riage. or acquired afterward In any way except through property <<
the husband, to their sole and separate use. as if unmarried. All their
contracts In relation to such property are valid and binding, and all
tbetr other contracts are binding, except those as sureties or guarantors
(or their husbands, or for and In behalf of their husbands. I pon the
death of wife, the husband Is entitled to substantially the same share
of her estate as she would he of his estate In case of bis death. (See
Descent of Property i They are Hable for debts contracted while
single, and their property may be attached to pay them. They are
also Hable for their torts before marriage In relation to their separate
property The husband Is not Hable for the wife's ante-Duptlal debts,
and cannot convey bis Improved real estate so as to bar his wife's
right of dower and homestead without her consent. Married women
of the age of twenty-one years may dispose of their property by will,
but not to affect husband's rights, nor can they convey so as to
deprive the husband of his right.
Mortgages- Real Estate. A conditional conveyance shall be
Ineffectual unless the sum to be paid, or the thing to be done. Is stated
In the conveyance. All mortgages shall be signed In the presence of
two witnesses and acknowledged before a justice of the peace or a
notary public. Mortgages may be foreclosed. 1. By entry under
process of law Into tbe premises and continued actual possession for
one year. 2. By peaceable entry In the presence of two witnesses
and continued actual possession for one year. 3. By tbe mortgagee
In possession taking formal possession under the second method. 4.
By a sale under the provisions of a power of sale mortgage. Mortgages
of personal property, to be effectual, the mortgagor and mortgagee
must take and subscribe the 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 towm where
the property Is situated.
Notes and Bills of Exchange. An Instrument to be negotiable
must conform to the following requirements: 1. It must be In 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
1802
BANKING AND COMMERCIAL LAWS—NEW JERSEY
in foreign countries acknowledgment or proof may be made
before a master in chancery, any court of law, notary public, mayor,
or chief magistrate, or any ambassador, consul, consular agent,
or other representative of the United States: If before foreign officer
then the proof or certificate must be accompanied hy a certificate under
the great Real of sucli foreign kingdom, etc., that the officer was author
ized. under the laws of sucn kingdom, at the time, to take acknowledg
ments and proofs of deeds or conveyances of lands, tenements or here
ditaments in such kingdom, etc.
Actions. All common law actions are now denominated "action
at law"; this, however, does not apply to proceedings upon Preroga
tive Writs.
Administration of Estates. Wills are proved before the ordinary
of the State, or the surrogate of the county, and letters testamentary
are granted. In case there Is no will, letters of administration are
j granted. Should there be a contest of the will or dispute as to the
right of administration, the •orphans' court has power to act. This
court Is also the proper tribunal for all disputes in matters of estates,
| Is the auditor of all accounts, and has varied powers In matters regard
j ing estates, such as the right to appoint trustees under a will, partition
where minors are Interested In lands, etc.
1
Affidavits In the state may be taken before the Chief Justice
of the United States or any associate Justice of the Supreme Court
of the United States, the Chancellor. Vice Chancellor, a judge of any
court of record, master in chancery, attorney at law of New Jersey,
justice of the peace, mayor, recorder, or alderman of any city or
borough, supreme court commissioner, city clerk, clerk or surrogate
of any county, clerk of a couit of record, notary public or commis
sioner of deeds.
Allens. No restrictions as to holding property. Foreign corpora
| tions. other than municipal, may purchase, use, and convey real
estate to New Jersey. (P. L. 1903, Chapter 22.)
Appeals. From justice's court to court of common pleas of county.
From district court to supreme court on question of law or evidence.
From common pleas or circuit court to supreme court. From circuit
ot supreme court to court of errors and appeals. Except in first two
or supreme court to court of errors and appeals. From orphans'
court to prerogative court. From prerogative court or court of chan
cery to court of errors and appeals.
Arbitrations may by the submission be made a rule of court, con
! cluding
the parties, by the award
Arrests, in civil actions, upon contract, a debtor may be arrested
i
under the following circumstances; 1. When he Is about to remove
any of hls property out of the Jurisdiction of the court in which an
action is about to be commenced with Intent to defraud creditors.
2. When the defendant has property or rights In action which he
fraudulently conceals. 3. When he has assigned, removed, or dis
posed of, or Is about to assign, remove, or dispose of, any of his property
with intent to defraud creditors. 4. When he fraudulently con
tracted the debt to question. No capias will issue except by order of
court. Judge, or court commissioner.
Assignments and Insolvency. The Insolvent laws provide for
the discharge of a person under arrest for debt or damages on hls
delivering up all hls real and personal property to hls creditors.
Assignments by debtors for the benefit of creditors must be without
preference, and all others are void. Debtor must annex sworn in
ventory. Wages of servauts, clerks, and laborers up to $300 each
are preferred claims. Assignee must file list of creditors at the end of
three months, and make dividends at the next term of court. Creditor
not presenting claim does not share in the dividend, but retains hls
right ot action against the debtor Corporation may make assign
ment tor the benefit of its creditors.
Attachment. A creditor may attach the property of a non
resident or absconding debtor by making oath to the fact, and to the
amount of hls claim, before any officer authorized to administer oaths
or affirmations Attachments are for the benefit of all applying
creditors, but the plaintiff or plaintiffs are to be first paid the amounts
due him or them before division with other creditors. Debts not due
may be proved under any attachment Issued, and receive their pro
rata dividend. No attachment can Issue against the members ot a
co-partnershiD. where one of them resides In the State, nor against
wages or personal property of non-resident when said property Is
exempt by laws of the State where debtor resides, at the suit of a non
resident creditor. Garnishment can be effected only In attachment
cases. Where capias ad respondendum will Issue to an action upon
contract, an attachment will lie; awarded by court or a judge thereof,
SYNOPSIS OF
or supreme court commissioner upon affidavit filed as required to ob
tain capias ad respondendum. Attachment will issue against female,
corporation or organization as if such defendant were liable to arrest.
(In actions of tort attachment will issue If summons can be served.)
THE LAWS
(See Arrest.) An action may be commenced by attachment upon
proof to court, tudge, or court commissioner: 1. That the plaintiff
has a cause of action, stating nature and particulars, and that the
defendant absconds from his creditors or is not resident and that sum
RELATING TO
mons cannot be served. (But no attachment will issue hereunder
against the rolling stock of a common carrier of another state or
against the goods of a non-resident in transit in the custody of a com
BANKING AND COMMERCIAL USAGES
mon carrier of this or another state.) 2. That cause of action sur
vives against heirs or devisees of decedent, and that some of such are
unknown or non-resident and there is property of decedent to this
Revised by Edward R. McGltnn, Counselor at Law, Newark and
State liable to answer the cause of action.
East Orange.
Banks are incorporated under special act. Under certain condl(See Card in Attorneys’ List.)
tions may purchase, hold, and convey real estate. Have the same
general powers and are subject to the restrictions and liabilities conQuestions in regard to New Jersey law will be cheerfully answered
tained In the general corporation act. so far as the same are applicable.
by this Attorney.
Every bank shall make at least four reports each year to commissioner
of banking and Insurance. These reports shall tie published in news
Acknowledgments of deeds are made within the State before the
paper where bank is located. Individual or private bankers are
chancellor or a justice of the supreme court, a master in chancery, i subject to the supervision and control of the department of banking
attorney at law. Judge of the court of common pleas, commissioner of I and Insurance. (See P.'L. 1899, p. 431.)
deeds, surrogate of county, or a deputy surrogate, or register of deeds,
Chattel Mortgages. Chattel mortgages to be valid must be ac
county clerk, or deputy county clerk during hls continuance in office; | knowledged
as deeds and affidavit of the consideration must be made
without the State, before a Justice of the supreme court of the United
by
the mortgagee. They must be recorded immediately in the county
States, circuit or a district Judge of the same, or a Judge or Justice of
where the sale or transfer takes place. In case household goods are
the supreme or superior court or chancellor of the State, district, or
mortgaged, the wife must also join.
territory, or before any mayor or chief magistrate of any city, borough,
Collaterals. As security for loans, regulated by commercial law
or corporation, duly certified under the seal of such city, borough, or
Pledges of property to pawnbrokers regulated by statute.
corporation, or before a Judge of the court of common pleas or county
court of such state, district or territory, or commissioner for New
Contracts. The following must be in writing: Leases for a longer
Jersey, dulv certified, under the official seal of such commissioner, or by
term than three years Assignments, grants, or surrender of leases.
a master in chancery, or attorney at law of this State, notary public, or
Declarations or creations of trust (does not interfere with implied or
by any officer authorized at the time of such proof or acknowledgement,
constructive trusts), grants and assignments of trusts. Special
by the laws of the State wherein the same shall be made or taken, to
promise of executor or administrator to answer out of his own estate
take the acknowledgment of deeds of lands lying and being in such
Special promise to answer for the debt, default, or miscarriage of
state. In case the acknowledgment Is made before a mayor or chief
any other person. To charge any person upon anv agreement made
magistrate, the certificate must be attested by the seal of the city; if i upon promise of marriage. Contract or sale of lands, tenements, or
before a Judge of the court of common pleas or county court, or other
hereditaments or any Interest in or concerning them. Any agreement
officer. It must be attested by seal of such court, and certified by the ; not to be performed within one year of the making thereof. Contract
olerk of the court If before an officer not enumerated but authorized , for the sale of goods of the value of 5500 or upward (acceptance of
as above statea. It must be certified tnat ne is sucn officer and
part of the goods or payment of pan of the price obviates necessity
authorized, under the laws of such state, district or territory, at the [ of writing); applies to sales for goods to be made as well as such are
time of taking such acknowledgement to take acknowledgments and
In existence, unless goods are to be made especially for purchaser
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 protectlon of the obligor: or gives the holder an election to require something to be done in lieu of payment of money. To charge Indorser,
notice of non-payment must at once be given to him. Time of
Maturity; Every negotiable Instrument is payable at the time fixed
therein without grace, except sight drafts. When the day of maturity
falls upon Sunday, or a holiday, the instrument is payable in 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 of the holder, be presented for payment before 12 o’clock, noon,
on Saturday, when that entire day Is not a holiday. (See Holidays.)
Power of Attorney. (See Conveyances.)
Probate Law. The probate court is a county court, and holds
numerous sessions in various places. Proceedings are begun by petltion and citation issued. The citations are served twelve days before
the return day. The court may proceed without noticein thefollowlng cases: In the probate of wills in the common form; in the appoint
ment of an executor nominated in a will; in the appointment of
appraisers of an estate: Id licensing the sale of real estate under $200
In value, or where the heirs consent tn writing: In appointing guardians
and commissioners; in granting allowances; in assigning dower and
homestead, in making orders for suits upon bonds; in changing names;
In appointing trustees nominated in a will. (See Administration of
Estates, Courts, Descent of Property, Dower, Married Women, and
Wills.)
Protest. Notaries public are the proper protesting officers. Notice
of the non-payment or the non-acceptance upon residents by mall is
sufficient (See Notes and Bills.)
Replevin may be brought to recover goods or chattels in specie.
The question of right of possession being in issue, the plaintiff shall
give bond to the sheriff in a sum not less than double the value of
the property to be replevied, to pay such damages as may be awarded
against him. If the defendant shall prevail he shall have Judgment
for the return of the goods, and other damages, or for their value.
Taxes become a lien upon the realty simultaneously with their
assessment (April 1st of each year). One year from the day of sale Is
allowed In which to redeem land sold for taxes, costs of sale and
Interest at the rate of 12 per cent per annum being added. A succes•Ion or Inheritance tax of 5 per cent upon Inheritances by collateral
heirs. Is collected through the probate courts.
Wills. Every person. Including married women, of the age of
twenty-one years, of sane mind, may dispose of their property by will.
No will Is effectual to pass property unless it is in writing, signed by
the testator or by some person In hls presence and by hls express
direction, and attested in hls oresence by three or more credible wit
nesses Can be In type writing. A seal Is not necessary. Foreign
wills valid tn the state where executed may be allowed here. Every
child or grandchild, or every child born after the decease of the tes
tator, shall be entitled to hls distributive share in the estate, if not
named in the will. A foreign will is proved here by the producion of
an authenticated copy thereof, together with an authenticated copy
of the probate thereof.
OF NEW JERSEY
i proofs.
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i
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BANKING AND COMMERCIAL LAWS—NEW JERSEY
and are not suitable for sale to others In ordinary course of sellers
business. Promise made after coming of ape to pay debt contracted
In infancy. Promise of bankrupt to pay after discharge. Promise to
pay claim barred by Statute of Limitations. Commissions to broker
or real estate agent, authority to sell must be in writing and rate of
commissions stated. In case of debts fraudulently contracted, suit
may be brought for recovory as soon as the fraud is discovered, not
withstanding debt may not be due.
Conveyances. Usually bargain and sale or warranty. Must be
acknowledged to be recorded. Acknowledgment of wife may be taken
In presence of husband. (See Married Women.)
Corporations. Corporations are formed under the general act;
however. Insurance, safe deposit or trust companies, banking corpora
tions. savings banks, railroad companies, or turnpike companies, or
such other companies which Intend to derive profit from the loan or
use of money, or which shall need to possess the right of taking or con
demning land, must be incorporated under special act governing such
companies. The certificate of incorporation shall be signed personally
by all subscribers to the capital stock and set forth: 1. The name
of the corporation. 2. The location of Its principal office in the State.
3 The object or objects for which the corporation is formed. 4.
The amount of the total authorized capital stock of the corporation,
which shall not be less than $2,000, the number of shares into which
same Is divided, and the par value of each share. The amount of
capital stock with which It shall commence business to be not less than
$1,000, which may be paid either in cash or property, and If there be
more than one class of stock created by the certificate of incorporation,
a description of the different classes with the terms on which the
respective classes of stock are created. 5. The names and post-office
address of Incorporators and the number of shares subscribed for hy
each, the aggravate of which shall he the amount of capital stock with
which the company will commence business, and shall be at least
$1,000 6. The period. If any, limited for the duration of the com
pany 7. The certificate of incorporation may also contain any
provision as to the regulation of the business and conduct of the
affairs of the corporation, and any provision creating, defining, limit
ing and regulating powers of the corporation, the directors and the
Stockholders, or any class of stockholders, provided such provision
be not Inconsistent with the act concerning corporations. Every
certificate and report must give address of New Jersey office and name
of agent In charge thereof, upon whom process against the corporation
may he served. Directors shall be stockholders, and shall he chosen
annually by the stockholders. They must be three in number, at
least. The officers are chosen annually: president must be a director.
One director must be a resident of the State of New Jersey. By chap
ter 197 Laws of 1916, rule is changed and none of directors need be
residents of New Jersey. Corporation may determine the manner
of calling and conducting all meetings, and what number of shares
shall constitute a quorum. (P. L. 1901, p. 260.) When corporation
is insolvent, remedy is by bill in chancery, the application for and
appointment of receiver of such insolvent company. Laborers and
workmen have first lien upon assets to a limited amount. Liability
of the stockholder ceases when shares are fully paid for, or in other
words, a stockholder is only liable to the amount of his unpaid sub
scription to the capital stock. Foreign corporations are subject to
the provisions of the general corporation act in so far as the same are
applicable: the provisions of which having been complied with, there
is issued by the secretary of state to such foreign corporations a certi
ficate that it is authorized to transact business in this state. It is
unlawful for a foreign corporation to transact business in this State
until such certificate is obtained. Foreign corporations, other than
municipal, may purchase, use, and convey real estate in New Jersey.
Associations not for pecuniary profit may incorporate under special
law providing for such incorporation. A copy of the corporation law
of the State, with full forms and instructions for incorporating, is sent
without expense by the secretary of state, Trenton, N. J., upon appli
cation. A copy of the corporation act may be had free upon applica
tion to New Jersey Registration and Trust Company, 625 Main Street.
East Orange, N. J.
Courts. Terms and Jurisdiction. Circuit courts and courts of
common pleas, holding three terms a year In each county, have lurisdictlon In all civil cases, but to carry costs must recover at least »lt»p.
except that the court of common pleas has no Jurisdiction where title
to lands comes into question. The supreme court, holding three
terms a year at Trenton, lias also original Jurisdiction In all cases, but
must recover $200 to carry costs Court of chancery has exclusive
equity jurisdiction, and sits at Trenton. District, court jurisdiction,
co-extensive with county, in amounts $500 or under, justices court
Jurisdiction co-extensive with county, in
cities where district courts are established and defendant or justice
of the peace reside within the limits of said city the justices court
has no civil jurisdiction w'hatever. (See district court revision
P. L. 1898.) The court of errors and appeals has no original juris
diction but hears appeals from court of chancery prerogative court
supreme court and circuit courts.”
Curtesy. (See Dower.)
Days of Grace. Abolished since July 4, 1895, unless stipulated
to the oontrary.
Depositions of material witness residing In the State, who Is
ancient or very Infirm, sick, about to go out of the State, or absent
from the State, may be taken de bene esse before a justice of the su
preme court, judge of the court of common pleas, supreme court
commissioner, or master in chancery, on notice to adverse party. Of
material witness residing out of the State by virtue of a commission
Issued out of the court before which the action is pending, either on
Interrogatories or orally upon notice. The commissioner must first
take and sign an oath, "faithfully, fairly, and impartially to execute
the said commission” before any officer authorized to take an oath.
Such depositions may also be taken before a Judge of the supreme
court or district court, or court of common pleas, commissioner of
deeds'appointed by the governor of the State of New Jersey resident
where the witness is, on notice of one day. exclusive of Sunday, for
•very fifty miles of travel and not less than ten days In all. If the
witness resides on the Pacific coast, the court fixes the length of
notice. If In a foreign state or kingdom, not less than forty days
notice must he given. (See Jeffery s Law Precedents, p. 260, et seq.,
and Dickinson’s Chancery Precedents, p. 217, et seq., for forms and
instructions.)
Descent and
Distribution. Descent: 1. To children and
grandchildren, and so on. that Is, lineally, ad Infinitum. 2. In de
fault of class 1, to brothers and sisters of the whole blood, and their
issue. 3. In default of classes 1 and 2. to the father and mother as
tenants by the entirety, and if the mother be dead to the father in fee,
unless the inheritance came from the mother by descent, devise, or
gift. 4. In default of classes 1. 2, and 3, to tne mother in fee unless
the property came through the father. 5. In default of the former
classes, to the brothers and sisters of the half blood and children of
such, provided the inheritance came from the common blood or by
purchase. 6. In default of all of these to the persons of equal degrees
of consanguinity. 7. In default of afi above classes to the husband
or wife, if any, in fee simple. Escheat to State after all above claims
are exhausted. Distribution: 1. One-third to the husband or
widow, residue to children and legal representatives of children.
2. If no children or legal representatives whole of estate to husband
1803
or widow. 3. If no husband or widow all to children, and if no
child, nor representative of child equally among parents and brothers
and sisters, except where intestate a minor then all to parents of
living, if not living, then to brothers and sisters equally. 4. If no
husband or widow, child, legal representative of child, nor parent,
brother or sister, then all to next or kin in equal degree.
Dower. Widow entitled to one-third for life of all the lands of
which her husband was seized during coverture, for whlcn she hat
given no relinquishment or release by deed, properly executed and
acknowledged.
(See Descent and Distribution.)
Executions issue Immediately upon a rendition of Judgment, and
are returnable either in term or vacation. An execution and levy
upon a Junior Judgment takes priority over a former Judgment under
which no execution and levy has been made. The proceeds are applied
to the payment of the execution upon which the sale is had There
is no stay of execution, except on those which are issued out of Justices
courts. In these courts thirty days are allowed on sums up to $15;
three months up to $69. and six months on all sums over $60, and this
only case of Judgment hy confession and defendant giving good and
sufficient freehold security. There Is no redemption after sale in any
case. Where an execution has been returned unsatisfied, the court
out of which it was Issued may> on application of the Judgment credi
tor, make an order compelling the debtor to appear before the officer
named and make discovery on oath concerning his property. The
Judgment creditor shall present to the court a petition verified by
oath, in which he shall state the amount due on said execution, the
return made, and his belief that the debtor has property in his own
right over and above that which is reserved by law. Court may make
order forbidding debtor from receiving or transferring property where
It is shown he has property or rights in action. Order may also be
made against third person owing debtor or having his property in
control, custody, or possession. Arrest on a capias can only he had
in case of fraud or attempted removal or dfsposal of property with
Intent to defraud creditors. Creditor may proceed upon unsatisfied
Judgment at law by bill in chancery; court has power to compel dis
covery, examine debtor, and to preserve and make disposition of
property. Where an execution upon a judgment is returned unsatis
fied and the judgment debtor is earning $18 or more per week, you can
attach the salary up to 10 per cent thereof where it is under $1,000
per annum. But if over $1,000, the judge may order a larger percent
age thereof to be attached.
Exemptions. The lot and building thereon, owned and occupied
by the debtor, being the head of a family, to the value of $1,000, pro
viding that In the debtor's deed It Is set out that the property la
Intended for a homestead, or else that notice to such effect Is filed in
the county clerk's office. Personal property to the amount of $200,
besides wearing apparel, owned hy a resident head of a family, ap
praised hy three persons appointed by the sheriff: and the widow of
family of a deceased person may claim the same exemption of $200 ai
against the creditors. Family of absconding debtor may claim ex
emption of $200 as above.
Frauds.
(See Contracts.)
Garnishment. (See Attachment, also Exemption.)
Holidays. Legal holidays are: January 1st, commonly called
New Year's Day; February 12th, called Lincoln's Birthday; February
22d, known as Washington's Birthday; Good Friday; May 30th.
known as Decoration Day; July 4th. called Independence day: first
Monday of September, known as Labor Day; October 12th, known ae
"Columbus Day:” December 25th known as Christmas Day: Thanks
giving Day. and any general election day. If any of these days
happen on Sunday the holiday is kept Monday. Ever
@FedFRASER