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DIGEST OF BANKING AND
COMMERCIAL LAWS
Compiled Expressly for

THIS EDITION OF

T he R and -McN ally Bankers ’D irector ?
BY

»

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

The Following States Have Put in Operation
T H E N E G O T I A B L E I N S T R U M E N T S LAW
State

C o n n e c tic u t.......................... ....................... A pr.
D e la w a re .................................... ..................J a n .

5, 1897
1, 1912

Dist. of Columbia.....................................Apr.
3, 1899
Florida......................
...A u g . 3, 897
H a w a ii........................................
.Apr. 20. 907
Idaho....................... . ' . . . .................. • • • • Mar. 10, 1903
In dian a..................................... .. • .............Apr. 1* ¡21;,
Iowa............................... . . . . . . . — . . . . . J ul y 4, J902
Kentucky ......................
Louisiana................
M aryland........................

State

In Effect

Alabama ......................... ............................ Jan. 1. 1908
Arizona......................................... • •• ........ Sep. 1, 1901
Arkansas.....................................................Apr. 22. 1913
Colorado ....................... • ........................ • •Ju^y ?’ ! 007

June 13, 1904
.Aug. 1, 1904
June 1, 1898

M a s s a c h u s e tts ......... .............. ..................... Ja n .

1, 1899

Michigan.......... .................................... I*?’ ]2?~
Minnesota...............
— ............. • •Apr. 24, 1913
Mississippi......................
July
/ , 1916
M issouri......................
June 16, 1905
Montana..................
Mar. 7, 1903
Nebraska.......................
.Aug. 1, 1905

Nevada . . . . . . . .
New Hampshire.
New Jersey. . . .
New M exico.. . .
New York........ !
North Carolina..
North D akota. ..
O h i o ........
Oklahoma........
Oregon...............
Pennsylvania ..
Philippines . . . .
Rhode Island ..
South Carolina .
South D ak ota..
Tennessee . . . . .
U tah...................
V erm ont..........
Virginia . . . . . . .
W ashington.. . .
W. Virginia.. . .
W isconsin........
Wyoming . . . . .

In Effect

May I. 1907
Jan. 1. 1910
July 4. 1902
Mar. 21. 1907
Oct. 1. 1897
Mar. 8. 1899
July 1. 1899
Jan. 1. 1903
July 20, 1909
May 19. 1899
Sep. 2. 1901
May 31, 1911
July 1. 1899
Mar. 25. 1914
July 1, 1913
May 16, 1899
July *1. 1899
Feb. 13, 1913
July 1. 1898
.June 7, 1899
Jan. 4. 1908
M ay 15, 1899
.Feb. 15. 1905

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

1545
98


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Dates of Regular Meetings
of Legislatures
Alabama______
Alaska —;___.
Arizona
__ !
Arkansas'_________
California_____ ___
Colorado _________
Connecticut
.
Delaware_________
District of Columbia
Florida___________
Georgia_____
Hawaii___iL iv.f .J!!
Idaho ____________
Illinois ___________
Indiana________.
Iowa___ __ _______
Kansas___________
Kentucky _4~ __
Louisiana______„
Maine__ _____ _
M a ry la n d ________
Massachusetts____
Michigan _________
Minnesota________
Mississippi-_______
Missouri______
Montana ______ _
Nebraska— .^——
N evada_________
New Hampshire__
New Jersey_______
New Mexico__ __
New York__ $,>__ _
North Carolina __i „ .
North Dakota:_____
Ohio ______ __ ____
Oklahoma__ ._____..
Oregon ___________
Pennsylvania _____
Rhode Island_____
South Carolina___
South Dakota_____
Tennessee—,—— —
Texas-',__ ___ ____.
Utah_____ _______
Vermont J.______ _
Virginia _________ _
Washington ______
West Virginia___ _
W isconsin_____ __
W yom ing________

January, 1915, and every four years.
.A Territory.
January__ _______ v__ I-Every odd year.
January_____t________ Every odd year.
January___ ,___________Every odd year.
Jamjdry ___ ____ ______ Every odd year.
January
__________ -Every odd year.
January___ -±t._______ Every odd year.
„ U n d e r U. S. Government.
..April ..
_______
Every odd year.
June
Every year.
February
L i __ Every odd year.
January:___ _________ Every odd year.
_January___
-Every odd year.
_January •
t______ Every odd year.
_January
_______Every odd year.
-January___
_
Every odd year. '
January _ _
Every eveiikyear.
May"
Every even year.
January
Every odd year.
January
Every even year.
— January.
Every year.
January
Every odd year.
January
Every odd year.
Every even year.
-January
- ——Every odd year.
January
Every odd year.
January
Every odd year.
January
Every odd year..
_January_
_______Every odd year..
-January
Every year.
-January
__
Every odd year.
J an u ary.
Every year.
January
Every odd year.
January
Every odd year.
January
_
Every odd year.
_January
______
Every odd year.
_January
__
Every odd year.
_January
__ ____Every odd year.
_January___ ____________Every year.
January
Every year.
January
Every odd year.
„January
Every odd year.
January
Every odd year.
January
..Every odd year.
January
Every odd year.
January
Every even year.
January
Every odd year.
—January
Every odd year.
January
-Every odd year.
—January----___ _Every odd year.
______

_

—

_________________

------------------------___________________________________________

_______

—

______

_

-----------------------------------------------------------

_____________

__________________________________________

___________—

______

—

_
_______________

__________________________________
..

_________

_____________

_

------------___________________________________________

...

_

_.

_

_
_
_
_
_

____________________________________

____________
________________

______

__

.

______

____________________
_
_

.

_

_

_

_______________________________________________________
______.

_

_
_

_

__

_
___________

_
_
_
_
_

________________________________________________
_______________________________________

_
_
_
_
_

.

_

_

_________

_

_

______

_

.

_

___________________________________

__________________________________________
______________________________________

_
_
_
_
_

_

_
_
_
_
_

_
____________________________

.

______

_

__

_
_________________________

_______________
_
______________

—

_
_
_
_
_

.___________________________________________
__________________________________________
_________________________

______

_

______

_ _____________________________________

1546

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

IMPORTANT*

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

SYNOPSIS OF

T H E L A W S OF ALA BAM A
RELA TIN G TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Mr . C l a u d s D . R it t e r , A ttorney a t Law.
Birmingham. (See Card In A ttorneys List.)
Acknowledgments or proof of real estate instrum ents m ay be
before one of th e following courts or officers: 1st. W ithin this State,
Judges of th e suprem e and circuit courts and the clerks of such courts,
chancellors, registers in chancery, judges of the courtsi of probate,
justices of the peace, and notaries public. The official should certify
th a t the person signing th e conveyance Is known to him and acknowl­
edges th a t “ being Informed of the contents of the conveyance he
executed th e same voluntarily on the day th e same beam date.
2d Outside of S tate—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 S tate: beyond the lim its
of the U nited States, by thè judges of any court of record, m ayor or
chief m agistrate of any city, town or borough, or county, notaries
public, or by any diplom atic, consular, or commercial agent of the
united States. F or forms of deeds see "Conveyances.”
A c tio n s . All ordinary suits a t law are commenced by suing out
a summons which m ust be accom panied by a com plaint stating the
cause of action. Non-resident plaintiffs are required to give security
for costs. W hen two or more persons are jointly bound by judgm ent,
bond, or agreem ent, th e obligation Is several as Well as joint.
A c c e p ta n c e . 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 m ay decline a qualified acceptance and
treat the bill as dishonored; if he takes qualified acceptance drawer
and endorsers are discharged.
A C h e c k . Is a bill of exchange on a bank payable on dem and;
must be presented within reasonable tim e after Issue and If dishonored,
notice m ust be given or drawer is discharged to the extent of loss
caused by delay; does n ot operate to assign any p art of drawer s funds
In bank, and bank is n ot liable unless it accepts or certifies. If holder
has check certified th e drawer and endorsers are discharged. The
making, uttering, drawing, or delivery of a check, draft, or order
upon which paym ent is refused upon due presentation because _of
lack of funds shall be deemed prim a facie evidence of intent to de­
fraud and p a rty m ay be convicted of a misdemeanor.
The present negotiable Instrum ent law of Alabam a, consisting or
186 sections went Into force August 9, 1907. Its provisions do not
apply to Instrum ents m ade prior thereto. The act so m aterially
changes th e law In this S tate as to suggest the propriety of special
exam ination In any doubtful case.
A d m in is tr a tio n of estates is had in the probate courts of dece­
dents’ residence. All claims m ust be presented within twelve m onths
after the same have accrued or w ithin twelve m onths after the grant of
letters testam en tary or of adm inistration, or else barred. Infants and
persons of unsound mind have one year to present their claims after
disabilities removed. Adm inistration of intestate is. granted, 1st:
To th e husband or widow; 2d: The next of kin entitled to share in
the distribution of th e estate; 3d: The largest creditor of the intestate
residing w ithin this S tate; 4 th: Such other person as the judge of
probate m ay appoint. There can be no appointm ent until alter
expiration of fifteen days from date of death. Preference m u st be
exercised within forty days or rights relinquished. If several entitled
to adm inister, m en are preferred to women and whole blood to hall
blood. Non-resident executors and adm inistrators m ay sue m this
S tate by recording in probate judge’s office copy of letters and giving
bond to faithfully adm inister property. A non-resident m ay be
appointed adm inistrator or executor of a deceased resident s estate.
A ffid a v its m ay be tak en within th e S tate before every judge or
elerk of an y court, justices of th e peace, and notaries public or any
other person invested by law w ith judicial functions. Outside th e
S tate and w ithin th e United States m ay be taken before any judge or
clerk of federal court, judge of an y court of record in any state,
notaries public and commissioners appointed by th e governor, f o r ­
eign officer tak in g affidavit m ust a tta c h seal.
A lien s. “ Foreigners who are, or m ay hereafter become, bona fide
residents of this S tate, shall enjoy th e same rights in respect to the
possession, enjoym ent, an d inheritance of property as native-born citi­
zens.”—Sec. 34, Const.
A lte r a tio n s . W hen a negotiable instrum ent Is m aterially altered
w ithout th e assent of all the parties liable thereon, it is avoided
except as against a p arty who has himself made, authorized, or
assented to th e alteration and subsequent endorsers. B ut when an
instrum ent has been m aterially altered and is in th e hands of a holder
In due course, n o t a p arty to the alteration, he m ay enforce paym ent
thereof according to its original tenor. Material alterations consists
of an y changes in d ate; sum payable, interest on principal; tim e or
place of paym ent; num ber and relation of parties; medium or currency
In which paym ent is to be made. ,


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A r b itra tio n . Courts are compelled by sta tu te to m ake an order
subm itting cases for arbitration when moved for by tb e parties, and
to continue this cause for one term for an aw ard, b ut not longer with­
out consent of parties, or good cause being shown therefor. The
award of the arbitrators m ay be entered up and enforced as the ju d g ­
m ent of the proper court w hether m ade in a pending suit or not.
A rre s t. There can be no arrest on civil process, except for con­
tem pt and in cases of alleged lunacy.
A s s ig n m e n ts a n d In s o lv e n c y . Every general assignm ent made
by a debtor, or conveyance by a debtor of substantially all of his
Droperty in paym ent of a prior debt, by which a preference or priority
of paym ent is given to one or more creditors, shall enure to the benefit
of all the creditors equally, b u t this section shall n ot apply to m ort­
gages, pledges, or pawns given to secure a d eb t contracted contem ­
poraneously with the execution of the m ortgage. All assignm ents by
a debtor m ade w ith in ten t to hinder, delay, or defraud creditors are
void. All deeds of assignm ent for th e benefit of creditors shall, a9
soon as executed, be filed and recorded in the office of th e judge of
probate of the county in which th e property is situated. Every
Judgment confessed, attachm ent 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 paym ent or as
security for a debt shall be deemed a general assignment.
A tta c h m e n t process will issue upon affidavit by the creditor or his
agent of the am ount due and th a t th e debtor absconds, or resides,
out of the State, or secretes himself so th a t process cannot be served
upon him, or is about to remove o ut 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 m ust give bond in double th e am ount claimed. A ttachm ents
will issue for the following dem ands: 1: To enforce the collection of
a debt, w hether it be due or not, a t th e tim e the attach m en t is taken
out. 2: For any moneyed dem and, th e am ount of which can b e ,
certainly ascertained. 3; To recover dam ages for a breach of con­
tra c t when the damages are n ot certain or liquidated. 4: When
the action sounds in damages merely in falling cases, viz. 1: Where
defendant is a non-resident. 2: W hen the defendant has absconded.
3: When defendant has secreted himself. 4: When defendant is
about to remove from the S tate. 5: When defendant is about to
remove his property from S tate. 6: W hen defendant is about to or
has fraudulently disposed of his property or fraudulently withholds
same. One non-resident m ay sue o ut an attachm ent against another
non-resident by making oath th a t the defendant has not , sufficient
property within th e S tate of his residence wherefrom to satisfy the
debt. A ttachm ents m ay be sued out in aid of a pending suit when
any of the above grounds exist by m aking affidavit and executing
bond. Garnishm ent process will issue in aid of attachm ent in all
such cases. G arnishm ent m ay be dissolved by giving bond. In all
cases of attachm ents sued out by a resident solely upon the ground
th a t the defendant is a non-resident, the attachm ent m ay issue w ith­
out giving bond, b u t if defendant appears and pleads, bond m ust be
given or the attachm ent dismissed.
B a n k s. The national bank system is in force in this S tate uncon­
trolled in any way by S tate laws, except th a t the shares are subject
to taxation as other personal property, b u t the bank Is required to pay
the tax.
,
*
There is no provision of law for the establishm ent of banks of Issue
In this State. Banks, of discount and deposit m ay be established
under the general incorporation laws. Depositors not claiming
Interest are preferred creditors in case of insolvency.
Any banker who discounts a bill or note a t a greater rate th an 8
per cent cannot enforce the collection of same except as to th e prin­
cipal, and if any interest has been paid it m ust be deducted from the
principal.
C o lla te ra ls. Receipt m ust be given for if dem anded. Pledges or
collaterals not transferable w ithout transfer of the debt; after two
days’ notice in writing collaterals m ay be sold, by advertising.for five
days, a t public outcry.
C o n d itio n a l S ales are good between the parties, b u t void where
personal property delivered to vendee as against purchasers for a
valuable consideration w ithout notice* mortgages and judgm ent
creditors, unless in writing and recorded in th e office of th e probate
Ckmditional contracts of sales m ust be recorded in office of the
Judge of P robate of th e county in which th e property is located,
to be valid against subsequent purchasers, judgm ent creditors, or
mortgagees w ithout notice, except in counties having a population
of more th an 80,000 and when contract is for a less am ount th a n $200.00.
C o n tr a c ts . In the following cases, every agreem ent is void, unless
such agreement* or some note or memo, thereof, expressing the con­
sideration, is in writing and signed by th e p arty to be charged: 1.
E very agreem ent which by its term s is not to be perform ed within
one year from the m aking thereof. 2. Every special promise by an
executor or adm inistrator to answer damages o ut Of his own estate.
3 Every special promise to answer for th e debt, default, or miscar­
riage of another. 4. Every agreem ent, promise, or undertaking,
m ade upon consideration of marriage, except m utual promises to
m arry. 8. Every contract for the sale of lands, tenem ents, or hered it
am ents, or of any interest therein, except leases for a term of not'
longer th an one year, unless the purchase money, or a portion thereof,
be paid, and th e purchaser be p u t in possession by the seller.
General acknowledgment m ust be signed to inake instrum ent selfproving. M arried women m ust acknowledge twice in the event
th e hom estead is conveyed. Form of general acknowledgment is as
follows:
„
The S tate of A la b a m a ,................... ............ County.
I ................................... ..
a (style of officer), hereby certify th a t
.............• .. . . , whose nam e is signed to the foregoing con-

1547

1548

BANKING AND COMMERCIAL LAW S—ALABAMA

veyanee an d who is known to me, acknowledged before m e on this
J b a t , being informed of th e contents of th e co n v S ra n ^ be
sa,m e voluntarily on th e day th e sam e bears date. Given
under m y h and and seal, th is...............'.d a y o f . . . . . A. d T
(Seal)
m
N otary Public,
t jp o p v ey an ces« All persons of th e age of tw enty-one years, not
S0? le
disability, m ay convey their re a fe sto te or
a? ? . lntereiVd}erel1* by ,lnstrunien t in w riting signed by th e grantor.
a u t? ori^ d
writing, and attested by one witness, or
w rlte’ by two witnesses who are able to write,
and who sign their nam es as witnesses. If th e grantor is n ot able to
fJS i.bis nam e it m ust be w ritten for him, and .the words “ his m ark”
° a agal^s1t *» . The Person w riting his nam e m ust sign
as a witness. A parol lease for less th an one year is valid. A married
Un?«a?nHV
h»«
u y th e same
of ag!rights
,I? ay as
convey
dower
in her
husband’s
lanqs.and has generally
m arried
women
over
tw entyyears of age. The husband m ust join in an y conveyance of the
wJJ® 8 separate estate. Conveyances, to operate as notice, m ust be
acknowledged and recorded. No tim e Is required within which con5 2 i ^ St« hnaUKb^ r?p3rdei1- Thejr operate as notices from d i t f S f
2 i « r>5r,i,«JJrobatf ^ ,ldse for record. (See Acknowledgments.) They
£ 5 h b®U8ed
Kence ^ b o u t further proof of execution.
Lease!L0ld ..e?tates
be created to last not exceeding tw enty years
b u t if longer void as to excess. A m arried woman m ust m ake th«l
following acknowledgm ent to a conveyance of a hom estead:
s ta te o f ............... . County o f ...............
th li
‘ ’ ' •■Jud&e of • . . . . . . . (or other officer) do hereby certify
known to me) t<rbe th e wife of th e w ithin n a m e d ...........
who, being exam ined separate and a p a rt from her husband touching
her signature to th e w i t h i n ................. ... acknowledged th a t shn siimpd
sam e of h er own free will and accord, and w ithout fear constraint,
or th reats on the p a rt of her husband.
ear’ constraInt'
I n witness ^whereof, 1 hereto set m y hand this ............... day of

Corporation to make following acknowledgment^
••••*.

t h a t ..................................

whose name a s ........ ......................
of the said corporation, "¿signed
X°f^b.e foregoing conveyance, and who is known to me, acknowledged
°? this day that, being informed of thè contents of the
b*v as such officer, and with full authority, executed the
sam e voluntarily for and as the act of said corporation.
E,very ®0™Pany- corporation, or association, not
S ifn 11in 1 n M n « r « ^ iilaKSi 0f Atabam a, engaged in any o ther business
before engaging in an y business in this S tate,
«
fbe secretary of state, a t th e capitol in Montgomery,
*?
ln ^ t l n g , under th e seal of such com pany, corporation,
? ^ ? Ct t » ? £ d ^ o f f i c i a l l y by th e president and secretary
a t le^.s t °% .know n place of business In this State,
a a d aa. authorized agent residing thereat. If such corporation is
ÌS
aSy
business of insurance, th e statem ent m ust be filed in the
office of th e insurance commissioner. If the agent is changed, a new
wiw,t„be,rfli+d ' Heldi n ot »° aPP!y t0 corporations selling goods
by t ravellng-ftgent or sample. Foreign corporations transacting busl“2?*
Ìb is S tate w ithout complying w ith above provisions, for each
M
S tate $1,000, and an y person acting as agent for
i&nn®11 ?°1rP °rat lon th a t has n ot so compiled, forfeits for each offense
M
foreign corporations doing business in this S tate are
2 S S £ f d FoSSXn
ran*in§ from $25 upw ard, according to
BMBBfe *l0/ eIg? corporations can do no business until fees are paid
- contracts before then are void. E very foreign corporation
p r n52l,re from secretary of sta te a perm it to do business
in th e S tate. This perm it costs $l<) per annum .
* 9 o u r *8’ ,, T erm s, and jurisdiction. The suprem e court, except
to issu ew rtts of injunction, habeas corpus, quo w arranto, and other
rem edial an d original writs necessary to its supervision of inferior
courts, and Im peachm ents of judicial officers, has only appellate juris­
diction an d cases are tried on the record sent up. Court of appeals
has final appellate Jurisdiction in th e following cases: 1 W hen
th e am ount involved exclusive of interest and costs does not exceed
th e sum of $1,000. 2. Of all misdemeanors, including th e violation
of tow n and city ordinances, bastardy, habeas corpus, and all felonies,
where th e punishm ent has been fixed a t tw enty years or under
Circuit courts have unlim ited common law jurisdiction when th e
m atter or sum in controversy exceeds $50. and exclusive Jurisdiction
of libel, slander, assault and battery, and ejectm ent. The courts of
chancery have exclusively equity jurisdiction. - Regular term s of
both twice a year in nearly every county. Chancery courts have
full equity powers. Justices of th e peace have Jurisdiction of all
« v ii causes where th e am ount in controversy does not exoeed $100 in
value, except in cases of libel, slander, assault and battery, and
ejectm ent. Names of all parties, plaintiff and individual nam es of
eo-partners, m ust be set o ut In writs. Partnership m ay be sued in
courts of law, In firm name, w ithout setting forth nam es of co-part­
ners, b u t judgm ent ln such suits bind only partnership’s property
not th a t of individual partners. The w rit m ay be served upon any
one of th e p artners: th e judgm ent reaches th e partnership property
alone. A ny one partner, or his personal representative, m ay be
sued alone on a partnership obligation. Non-residents m ust give
security for costs when suit is commenced or w ithin such tim e there­
after as th e court m ay direct. Money m ay be deposited w ith the
d o rk instead of sureties.

Days of Grace are abolished.

(See Negotiable Instruments.)

D e p o s itio n s . I n cases a t law, depositions m ay be taken of witgasses who cannot be present a t the trial in the following cases:
W hen th e witness is a female; when the witness is too sick to a tte n d
Court; when th e witness resides more th a n 100 miles from the place of
trial, o r is ab sent from the S tate; when the witness is about to leave
th e S tate, and n ot retu rn in tim e for the tria l; when th e witness is the
sole witness of the facts; when th e witness is one of th e officers desig­
nated in Code No. 4030. Affidavit m ust be m ade of one of the above
tacts, and of th e m ateriality of the witness. May be tak en on inter­
rogatories by a som m issioner appointed by th e court for th a t purpose.
T h e commissioner m ay be an y suitable person, need n o t be an officer.
In equ ity suits, where Witnesses live w ithin 100 miles of th e place of
trial, depositions m ay be taken by oral exam ination before the regis­
ter, o r a special examiner, or commissioner appointed for the purpose.
d i s t r i b u t i o n . The real estate of personsi dying
jhis State, descends, subject to th e paym ent of debts and
Si®**81.-® ^ 8 d0J ?erj as follows: First to the Children of the in testate
o r th eir descendants per stirpes in equal parts. N ext, to th e parents,
k th ey survive, in equal parts. If only one parent survives, then
one-half to such parent and one-half to the brothers and sisters of the
deceased o r th eir descendants, and If there be no brothers and sisters
and th eir descendants, th en th e whole estate shall go to th e surviving
p aren t. If there are no children or th eir descendants, and no father
o r m other, th en to th e brothers and sisters of th e intestate, or their
ae8oendaqts, in equal parts. If there are none of th e above tò take,
then th e whole to th e husband or wife of th e Intestate, and if there be
ao husband or wife or none of th e foregoing living, th en to th e next


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of kin in equal degree in equal parts. If there are no n n ,
...
it escheats to the State. The personal estate is distributed the same
estate except that if there are no children the widow la
entitled to all of the personal estate. If but one child she takes°oni!
half. If not more than four children to a child’s part, and If mi™
m m m
-Posthumous children take as others niaritt
mate children inherit from their mother. The husband
death of the wife is entitled to half of her personal estate ahsnintd *
Sf ^.11° i£n?rnioi f i of.herreal estate for life, unless he^islmendiimsted
2 f,ad
over her estate? by a decree of the chancery Cmm
ii-e^nf+wh,^Hef ed bT. P®” °nal representation for death of deceased
h l T A n t S r t0 8tatUt* °f dl8trlbutl®n aad are exempt
S ? 1S8? the wife has relinquished her right of dower in th*
™aS?er provided by statute she is, upon the death of the husband
h1 ad lands of which the husband was seized in fee
.the ™arriage, or of which another was seized to his use or tn
th ilJfn r f t d perfect equity, having paid all the purchasemroev
E S « ; The dower interest is one-half when the husband leaves Si
hnaKindSiCeridant2ii2'nd ®nak'third when the estate is insolvent or the
husband leaves children or their descendants. If the wife has at th2
8ep?rate estate e q S l iA valu^to he? doAer
interest» she shall not have dower, and If of less value is only entitle
to such amount as with her estate will make the full value of the dower
Property subject to: 1st: On real property to
de^endant has a legal title or a perfect equity, having Daid
the purchase money, or in which he has a vested Interest in DossJLkwT
fO T ,1®“’J?r remainder, whether he has th“ e n ^ e ^
to it in common with others. 2d: On personal property of the dafon
t<?Dor th£ert£ii?ln8i8 a®tion), whether he has the absolute title ther*
n?
only to the possession thereof for his own life, the Ufa
,0=iar 3 ® r’ oral,e88Perlod- 3d: On an equity of redemption in either
i«%«b?on™ properl y, wh.en any Interest less than the absolute
title is sold. The purchaser is subrogated to all the rights of th*
defendant, and subject to all his disabilities. Writ of fieri facias is a
within the county in which it is received by the officer on
>aad8and personality of defendant subject to levy and sale, from'the
flX*® only that the writ is received by such officer and continues u
as wrIt 18 regularly delivered to the sheriff without the lapse of an
entire term. A statement of a judgment certified by the clerk of tk*
court may be filed in the office of the judge of probate? w f f i make?
the judgmenta lien within the county in which it is filed for ten yean
thereafter. Execution may be issued on such judgment at an? «m?
r i l T S S by ^®«ces are liens on the property of th?7d t t
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
unto*1
appeal, and supersedeas bond which delays collection
with
8™j?rem? 00UTrt* and, entails 10 per cent damages,
„ Jj legal Interest and costs. In justice s court stay is granted on
good security, below $20, thirty days over $20. sixty days.
vaiut?m *,**°nS " ®-omes*ead n o t exceeding 160 acres or $2,000 in
Personal property to th e am ount of $1,000. Exem ption of nersonal
P roperty m ay be waived by instrum ent in w ritin^except As to certah!
per^m m th™ ™ 1*1116 and provlsIoils an d wages to am ount of $25.00

« 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 Stats
money or goods so obt&ined, punished as larceny.
In any case after suit commenced upon
m®nt. lrithoutTm(f.
b°Dd " 111 attachment cases, or after JudgH oU days. T he following are the legal holidays: Sunday Ohristm as Day.¡j F irst day of January, 19th day of January, 22nd day of
ho
’QTvi ai.dlT ^ ri ls ^ ay’ 13*b day of April, 26th day of AprS, Tues­
day before Ash Wednesday, 3rd day of June, 4 th day of Ju ly first
M onday in September, 12th day of October, 2nd Tuesday in October
and day designated by the Governor for public Thanksgiving If

£ay of Janpa^ . or th e m h d a y o fja m

W . or the 22nd day of February, or the 13th day of April or the
^ i 1, ’ °5
?rd day of June, or the 4 th day of July falls
on Sunday, th e M onday following is the holiday. I f any paper becomes
ness°dayh° llday’ mUSt be taken as dde on the next succeeding busi*o

a n 4 W ife.

The wife has full legal capacity to contract

rea?estate wtthmrf t
h
9an p°t alienate or encumber her
£™v.es j S without the husband joining in the conveyance, unless the
oHe„lDHane or ba® abandoned her, or is a non-resident, or ii
imprisoned under a conviction for crime for a period of two years or
* * may convey
» a8other,
iTshebut
were
role7
Husband and wife tbe
may* contract
with each
the
wife canthe husband. All of the property and thelirahS s
her separate estate, and are not liable for the debts of
relating to her Teparate S tole8?? “ n tr a c to a liffm a 1^ ^ ^ ^
oPreraa°nn d W & f (Overture!0617 C°Urt baS «
®?apy
„ „ p ite r e s t. Legal ra te is 8 per cent, and sam e is allowed on all open
accounts, judgm ents, and decrees. U sury forfeits all interest and
th e principal“1 aS interest on an usurious contract shaU be credited on

Judgm ents of courts of record are proved by a certified transcrint
W 5 & S * n°t a Ue?. but when a certlfledstotemtntthereof.mad^
the court of the clerk, is filed in the office of the probate Judge it
whnoPfa
811 proS ert? oi the defendant therein in the county,
wnicli is subject to execution for ten, years, to enforce whicb execution
tim e within th a t period. Execution received by

ex??utmA issued
Mu1edea°Ldf
^ H a?ft
^ ay haslevled
afterlapse
his dece???
o? term
alias
execution
ana levied
if there
not been
of entire
Uhn origlnaUy created. Above applies to executions
I'? » chancery courts.
An execution issued by a justice
of th e peace is a lien only from tim e of its levy. All acreem ents to
or t0 authorize another to confess judgm ent, made
so conflrmed a“ ?^ ?id :m ent ° th e s u lt ln WWoh 8Uch Judgm ents are

me^?ni?HnImatPr^ieii,Vr, ^c^trectors, including subcontractors,
S d the
labcrera have a lien on houses built
ana the ground on which they stand upon complying with the law.
or
<Fn*1landlo,r,ds of any store house, dwelling house.
uilding’ shall have a lien on the goods, furniture and effects
and sub-tenant for his rent, which shall be
other liens, except those for taxes, also on crops grown
on rented premises for rent of the current year.
K
, ¥ 9te!.and stated accounts, six years; open accounts,
offl^?*rJre^ ? ’rr8ea^el, iustruments, real actions, and motions against
twenty years; actions on the case, one
^led by statute can only be removed by a partial payr H H r ^ n c o u t t o c t before the bar is complete, or by an uncon^ anyone entitled to bring7an action,
h»
or defense founded on title to real estate,
be at the time such right accrues, within the age of twenty-one yean.

BANKING AND COMMERCIAL LAWS—ALASKA
or insane or imprisoned on a criminal charge tor a term less than life,
he shall have three years, or the period allowed by law, tor bringing'
such action, 11 the period allowed by law be less than three years, alter
the termination o1 such disability to bring such suit, etc., but no action
can be commenced alter twenty years. Statutes ol limitation apply
to married women s separate estates. Actions founded on a promise
in writing, not under seal, or tor trespass to person or property, must
be brought within six years. Statutes ol 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 tor the bringing ol any action is void. Actions seeking rellel
on the ground ol Iraud where the statute created a bar. the cause ol
action begins to run upon discovery ol the Iraud 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.
M arried W om en. (See Husband and Wile.)
M ortgages are executed and acknowledged in the same manner as
deeds. May be foreclosed Ijy bill in equity, or il there be a provision
to that effect, by sale under power, upon such delault as authorized
a sale. All mortgages are void against creditors or purchasers without
notice, unless recorded. Mortgages operate as notice irom day ol
delivery to probate Judge tor 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
ol wile, evidenced by acknowledgment, upon private examination
separate and apart Irom the husband, and certified. All mortgages
must be in writing, signed by the mortgagor. Payment ol mortgage
debt made before or alter m aturity ol debt, revests in the mortgagor,
or his assigns, the title to the real or personal property mortgaged, il
made in the liletime ol the mortgagor; il made alter his death, such
payment revests title to personal property in the personal representa­
tive, and title to reality in the heirs, devises, or legatees ol the mortga­
gor. Chattel mortgages must be in writing. When the mortgagor
Is sued by the mortgagee tor possession ol the mortgaged property,
he may delend by showing payment ol the debt, or part payment and
a tender ol the balance, or may pay it alter judgment.
N egotiable In s tru m e n ts . Must be payable in money and must
contain an unconditional promise to pay a sum certain on demand or
at a fixed or determinable luture time; must be payable to a specified
person or bearer; may be Til 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 overdue it is payable
on demand; may be payable to two or more payees jointly, or one or
more of several payees, or to the estate of a deceased person; absence
or failure of consideration a defense against one not a holder in due
course and partial failure a defense pro tanto. One not a party to
instrument placing a signature in blank before delivery becomes an
endorser. Every endorser engages th at on due presentment it shall
be honored or th at 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 Satur­
day. Fraud and circumvention in procuring execution of instrument
is a defense against any holder.
Powers of A ttorney. 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.
P re se n tm e n t. Is not necessary to.charge one primarily liable
except in case of bank notes; if payable a t special place ability and
willingness to pay it there a t m aturity is equivalent to a tender; if
not on demand it must be presented on day it falls due, if on demand
then within a reasonable time after its issue, except a bill of exchange
must be presented within reasonable time after its last negotiation.
P robate Law. A court of probate, consisting of one judge. Is
established for each county in the State. This court has jurisdiction
of the probate of wills, of granting letters testamentary and of admin­
istration. and the repeal or revocation of the same; of the settlements
of accounts of executors and administrators, of the sale and disposition
of the real and personal property belonging to, and the distribution of,
intestates’ estates. Also of the appointment, removal, and settlements
of guardians tor 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.
Prom issory Note. Must be unconditional promise in writing to
pay on demand or a t 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.
P rotest. (See Negotiable Instruments.)
P ro test of Foreign Btlls. May be made by notary public of 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 band
of drawee and he is not liable unless he accepts.
Replevin. W rit 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.
Taxes become due on October 1st, and delinquent on the 31st of
December of the year for which they were levied, and the lands may
be sold by certain proceedings in the probate court commenced in
the month of March following. Rate of taxation is sixty-five per
eent on each 4100.00, for State purposes. County may levy a like
amount. Municipalities may levy a lax not to exceed one hall of
one per cent. The purchaser of lands sold for delinquent taxes
receives from the collector a certificate of purchase, containing a
description of the property, the date and amount of assessment,
taxes, costs, fees, etc., which after the expiration of two years from
the date of the sale is exchangeable for a deed from the probate
Judge—which is prima facie evidence of title. Lands sold for taxes
may be redeemed within two years by the owner, mortgagee, or any
person having a beneficial interest therein by depositing with the
probate judge of the county in which the lands were sold, the amount
of purchase money, with interest a t 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


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1549

of lien of state or county, or the property for payment of taxes for
whioh sold. All cotton factories or cotton mills which shall be
constructed in this State within five years shall be exempt from,
taxation for a period of ten years, provided such mills represent an
investment of $50,000.
W ills. All wills 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 testator 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 th at 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

T H E L A W S OF ALASK A
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by O. D. C och ran , Attorney a t Law, Nome.
{See Card in Attorneys’ List.)
A cknow ledgm ents. (See Deeds.)
A ctions. The distinction between actions a t law and suits in
equity and all forms of pleading heretofore existing in actions a t law
and suits in equity are abolished, and there is but one form of action,
denominated á civil action, for the enforcement or protection of pri­
vate rights and the redress or prevèntion 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 fot a thing in action not arising out of contract is not
authorized.
A ffidavits. An affidavit or deposition taken out of Alaska, other­
wise than upon commission, must be authenticated as follows: 1«
I t 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 thé court, under the seal thereof. In all affidavits or depositions
witness should speak in the first person.
Aliens. Any alien who is a bona fide resident of the United States,
or who has declared his intention to become a citizen, or whose rights
are secured by treaty, may acquire and hold lands upon the same terms
as a citizen. Any alien may acquire lands by inheritance or in the
ordinary course of justice in the collection of debts, and may acquire
and enforce liens upon lands, but such lands must be sold within ten
years. Any alien may also acquire and hold lots or parcels ol land
in any incorporated or platted city, town, or village, or in any mine
or mining claim, but is not authorized to acquire title from the united
States to any of the public lands.
A rrest. The defendant may be arrested In the following civil
actions: 1. For the recovery of money or damages when the de­
fendant is about to remove from the district with Intent to defraud
his creditors; tor an injury to person; or for willfully injuring or wrong­
fully taking, detaining, or converting property. 2. For a fine or
penalty; or tor money or property embezzled or fraudulently mis­
applied or converted to his own use by a publlo officer, or by an a tto r­
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 la a
fiduciary capacity or for misconduct or neglect in office or In a profes­
sional employment. 3. To recover the possession of persona!
property unjustly detained, when the property or any part thereof
has been concealed, removed. Or disposed of, so th at it cannot be
found or taken by the marshal, and with intent that it shèuld 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 tb
do so, with intent to defraud his creditors.
A tta c h m e n t. The plaintiff, a t 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 th e 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; th at the payment has not been
secured by mortgage, lien, or pledge upon real or personal property;
and that the sum tor which attachm ent is asked is an actual, bona fido,
existing debt due and owing from plaintiff to defendant; and th at tho
attachm ent is not sought nor the action prosecuted to hinder, delay,
or defraud any creditor of the defendant. Plaintiff must also file an
undertaking, with one or more sureties, Id a sum not less than $108.
and equal to the amount for which he demands judgment, conditioned
th at plaintiff will pay all costs adjudged and all damages sustained
by reason of the attachment if the same be wrongful or without sufllI den t cause, not exceeding the amount specified.

1550

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

C h a tte l M o rtg a g e s . Any Interest in personal property, capable
« being transferred, m ay be m ortgaged; b ut the m ortgage is void as
against creditors and subsequent purchasers and incum brancers in
good faith and for value, unless possession of the property be delivered
to an d retained by th e m ortgagee or th e m ortgage provide th a t the
property m ay rem ain in the possession of th e m ortgagor and be ac­
companied by th e affidavit of all the parties thereto th a t the sam e is
made In good faith to secure the am ount nam ed therein, and without
design to hinder, delay, o r defraud creditors, and be acknowledged
and filed. The m ortgage m ust be acknowledged by th e mortgagor
as a conveyance of real property is and be filed In the office of the
recorder of the precinct where th e m ortgagor resides and of th e pre­
cinct where th e property Is. W ithin th irty days next preceding the
expiration of one year from th e filing, a tru e copy of the mortgage,
with a verified statem ent of the Interest of the mortgagee in the prop­
erty a t th e tim e th e same is renewed, m ust be filed in the office where
th e original was filed, and th e lien is thereby extended another year.
Chattel mortgages are foreclosed in the same m anner as m ortgages
and liens upon real property, but a clause m ay be inserted in a mortgage
authorizing the m arshal to execute th e power of sale therein granted
to th e mortgagee.
C o rp o ra tio n s . Domestic Corporations. Three or more ad u lt per­
sons, bona fide residents of the district, m ay form a corporation for
the following purposes: To construct, own, and operate railroads,
tram ways, 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 m anufacturing in Alaska.
Foreign Corporations. Every corporation or joint stock company
organized under the laws of th e United States or any sta te or territory
shall, before doing business w ithin the district, file in the office of the
secretary of the district and in the office of the clerk of the district
oourt for th e division wherein it intends to carry on business a duly
authenticated copy of its charter or articles of incorporation, and also
a statem ent verified by the oath of its president and secretary and
attested by a m ajority of its board of directors. T hereafter such
statem ent m ust also be so filed within th irty days after Ju ly first of
each year.
D eed s. A conveyance of lands, or of any estate or Interest therein,
m ay be m ade by deed, signed and sealed by the person from whom
tne estate or interest is intended to pass, and acknowledged or proved,
and recorded, w ithout any othpr act or ceremony. A quit-claim deed
passes all th e 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 m ay, by their
Joint deed, convey th e real estate of the wife, in like m anner as she
might do by her separate deed if she were unm arried. A 'm arried
woman residing in the district, joining her husband in a deed, m ust
acknowledge th a t she executed such deed freely and voluntarily
When a m a rrie d 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 acknowledgm ent or proof of the
execution m ay be m ade the same as if she were sole. W ithin the
district deeds m ust be executed in the presence of two witnesses, who
•hall subscribe their names as such; and the person executing a deed
m ay acknowledge the execution before a judge, clerk of the district
court, notary public, or commissioner within the district, and the
officer taking the acknowledgment m ust indorse thereon a certificate
of acknowledgment and the true date of m aking the same under his
handj
D e p o s itio n s . The testim ony of a witness, in th e district, m ay
be taken by deposition, in an action, a t any tim e after th e 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 p arty to th e action or proceeding, by th e opposite p arty ; 2, the
witness s residence is more th an one hundred miles from the place of
trial; 3, th e witness is about to go more th an one hundred miles beyond
the place of trial; 4, th e withess is too Infirm to a tten d the trial; or, 5,
the testim ony is required upon a motion, or in any other case where
the oral exam ination of the witness is n ot required.
The testim ony of a witness, o ut of th e district, m ay be taken by
deposition, by.commisslon issued, upon five days’ notice to the other
party, by th e clerk of the court, or justice of the peace in a rause in his
own court, to a person agreed upon by the parties, or, if th ey do not
agree, to a judge, Justice of the peace, notary public, or clerk of a
court selected by th e officer issuing th e commission.
The am ount of th e commissioner’s fees should be Indorsed upon the
deposition.
D e s c e n t a n d D is tr ib u tio n . The real property of an Intestate
descends as follows: 1. In equal shares to his or her children and
to th e issue of any deceased child by right of representation; and
If there be no child of in testate living a t th e tim e of his or her death,
to all his or her other lineal descendants; and if all such descendants
are in th e same degree of kindred to the intestate, they take equally;
otherwise, by representation. 2. If intestate leave no lineal descend­
ants, to his wife; or if intestate be a m arried woman, to her husband:
and if Intestate leave no wife nor husband, to his or her father. 3.
If in testate leave no lineal descendants, neither husband nor wife,
nor father, such real property descends in equal shares to his brothers
and sisters, and to the issue of any deceased brother or sister by
right of representation; b u t if Intestate leave a m other, she takes
an equal share w ith such brothers and sisters. 4. If intestate leave no
lineal descendants, neither husband nor wife, nor father, brother,
nor sister, such real property descends to his m other, to the exclusion
of the Issue of deceased brothers and sisters. 5. If intestate leave
no lineal descendants, neither husband nor wife, nor father, m other,
brother, nor sister, Such real property descends to his next of kin
In equal degree, excepting th a t when there are two or more collateral
kindred in 'equal degree b u t claiming through different ancestors,
those who claim through the nearest ancestor are preferred. 6. If
in testate leave one or more children, and the issue of one or more
deceased children, and any of such surviving children die under
age w ithout having been m arried, all such real'p ro p erty th a t came
to^auch deceased child by inheritance from such Intestate descends
In equal shares to the other children of such Intestate, and to the issue
of an y other children who have died, by right of representation. B ut
If, all th e 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 th ey are In the same degree of kindred to such deceased
child; otherwise, they take by right of representation. 7. If intes­
tate leave n o lin eal descendants or kindred, such real property escheats
to th e United States.
P o w e r a n d C u rte s y . The widow of every deceased person is
entitled to dower, or th e use during her natural life of one-third p art
In value of all th e lands whereof her husband died seized of an estate
of inheritance.
W hen an y m an and his wife are seized In her right of any estate of
Inheritance in lands, the husband, on the death o f his wife, holds the
lands for his life as te n a n t thereof by th e curtesv, altbougn such
husband and wife m ay not have had Issue born alive.


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E v id e n c e . No person m ay be excluded as a witness on account of
being a p a rty or interested in th e event of an action or proceeding
having been convicted of a crime, or his opinions on m atters of religious
belief. Persons of unsound mind and children under ten years of &m
who appear incapable of receiving Just impressions of the fact respect­
ing which they are examined or of relating them tru ly m ay not be
witnesses. An atto rn ey m ay not, w ithout his client’s consent, be
exam ined as to com m unications m ade by his client to him or his advice
thereon. A priest m ay not, w ithout the consent of the person maklne
the confession, be exam ined as to an y confession m ade to him in his
professional capacity, in the course of discipline enjoined by th e church
to which he belongs. A physician or surgeon m ay not, against the
objection of his patient, be examined, In a civil action, or proceeding
as to inform ation acquired in attending the patient which was necesl
■ary to enable him to prescribe or act.
E x e c u tio n s . (See Judgm ent and Execution.)
E x e c u to rs a n d A d m in is tr a to rs . W hen a will is proven letters
testam entary are Issued to th e persons therein nam ed as executors
or to such of them as give notice of their acceptance of th e tru st and
are qualified. Adm inistration is granted as follows: 1. To the
widow or next of kin, or both, in the discretion of the oourt; 2, to one
or more of th e principal creditors; or, 3, to an y other person competent
and qualified whom the court m ay select. If deceased were a married
woman adm inistration shall in any case be granted to the husband.
If qualified, and he apply therefor. Claims are paid in the following
order: 1. Funeral charges. 2. Taxes due the United States.
3. Expenses of last sickness. 4. All other taxes. 5. Debts pre­
ferred by the laws of the U nited States. 6. Debts which a t th e death
of th e deceased were a lien upon his property. In the order of the
priority of the liens. 7. Debts due for wages earned within ninety
days im m ediately preceding death of decedent. 8. All other claim?
E x e m p tio n s . 1. Earnings of Judgm ent debtor, for personal ser­
vices rendered w ithin sixty days next preceding the levy of execution
or attachm ent, when necessary for the use of his fam ily supported
^ in whole or in p art by his labor. 2. Books, pictures, an d musical
Instrum ents owfied 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 th e trade, occu­
pation, or profession by which such person habitually earns his living,
to the value of $500; also sufficient q u antity of food to support such
team , if any, for six m onths; the word "team ” being construed to
include not more th an one yoke of oxen, or a span of horses or mules,
or two reindeer, or six dogs. 5. The following property, if owned
by th e head of a fam ily and in actual use or kept for use by and
for his family, or when being removed from one habitation to another
on a change of residence: Ten sheep, w ith one year’s fleece or the
y a m or cloth m anufactured 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 m onths, and
provisions actually provided for fam ily use and necessary for the
support of such person and family for six m onths. 6. The seat
or pew occupied by th e head of a fam ily or his fam ily in a place of
public worship. 7. All property of any public or municipal corpora­
tion. No article, or the proceeds derived from its sale or exchange,
is exem pt from execution on a judgm ent recovered for its price.
G a r n is h m e n t. (See A ttachm ent.)
H o m e s te a d . The hom estead of any family, or the proceeds thereof,
is exem pt. Such hom estead m ust be the actual abode of, and owned
by, such fam ily or some member thereof, and n ot exceed $2,500 in value
nor exceed 160 acres in extent, if n ot located in a town or city laid
off into blocks or lots; or if located in an y such town or city, one-fourth
of an acre. This exem ption does n o t apply to decrees for th e fore­
closure of any m ortgage properly executed; b u t if the owners of such
hom estead be m arried, the m ortgage m ust be executed by husband
and wife.
\
I n t e r e s t . The legal rate of interest is 8 per cent, b ut on contracts
Interest a t the rate of 12 per cent m ay be charged by express agree­
m ent of th e parties. If usurious interest has been received or collected,
the p a rty paying the same, or his legal representatives, m ay, by action
brought w ithin two years, recover double the am ount of such interest.
If it is ascertained in any action upon contract th a t an unauthorized
rate of interest has been contracted for, judgm ent m ust be rendered
against the defendant for th e am ount due, w ithout interest, and
against the plaintiff for costs. If th e rate contracted for is 8 per
cent or less, the debtor m ay also agree to pay the taxes upon the
debt, credit, or mortgage.
J u d g m e n t a n d E x e c u tio n . A judgm ent is docketed imme­
diately after entry. A t any tim e thereafter while execution may
issue a certified transcript of the docket m ay be filed in th e office
of th e recorder of any recording district, and from th e date of docketihg ja judgm ent or transcript thereof the judgm ent is a lien upon
all th e real property of th e defendant within the recording district
or districts where docketed, or which he m ay afterw ards acquire
therein during the tim e an execution m ay issue. If no execution
issues within ten years the lien expires, b ut Is renewed if afterwards
leave is given to issue execution and a transcript of the docket of
the order docketed with the recorder.
Execution m ay issue a t any tim e within five years from the entry
of the. Judgm ent, and thereafter on order of th e court m ade on motion
of the p arty in whose favor the judgm ent was given. Such motion
m ust be subscribed and verified as a com plaint, and summons must
be served upon the judgm ent debtor or his representatives, to which
he or they m ay dem ur or answer. The order m ade m ust be dock­
eted as a judgm ent. Execution m ay be against the property of the
judgm ent debtor, his person, or for the delivery of the possession
of real or personal property or such delivery with damages. Execu­
tion from the district court is returnable within sixty days; from the
commissioner’s court within th irty days. U ntil a levy property is
n o t affected by the execution.
L ic en ses. (See Taxes.)
L ie n s. Every mechanic, artisan, m achinist, builder, contractor,
lum ber m erchant, laborer, team ster, draym an, and other person
performing labor upon or furnishing m aterial 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 m aterial fui>
nished a t the instance of the owner of the building or other Improve­
m ent or his agent; and every contractor, sub-contractor, architect,
builder, or other person having charge of th e work. In whole or la
part,-is, for this purpose, deemed the agent of the owner.
L im ita tio n s .: Civil actions m ust be commenced within the
following periods after the cause of action accrued: W ithin tea
years—action for th e recovery of real property, or th e possession
thereof; upon a judgm ent or decree of any court of the United States,
or of any sta te or territory w ithin the United S tates; upon a sealed
instrum ent. W ithin six years—action upon a contract or liability,
express or implied, except judgm ent or, sealed instrum ent; upon a
liability created by sta tu te, other th an 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 LAW S—ARIZONA
w ithin three years—action against a m arshal, coroner, or constable,
anon a liability Incurred by the domg ot an act in his official capacity
or in virtue ot his office, or by the omission ol an official duty, including
the non-paym ent of money collected upon execution, b u t not an
action to r an esoape; action upon a sta tu te for penalty or forfeiture,
where th e action is given to th e p arty aggrieved, or to such p.arty
and the U nited States, except the sta tu te prescribe a different lim ita­
tion W ithin two years—action for libel, slander, assault, battery,
«eduction, false im prisonm ent, or for any injury to the person or
rights of another n o t arising on contract; upon a sta tu te for a for­
feiture of penalty to the United States. W ithin one year—action
against th e m arshal or other officer for th e escape of a person arrested
or imprisoned on civil process; upon a sta tu te for the penalty given
in whole or In p a rt to th e person who will prosecute, b ut If not com­
menced w ithin one y ear by private p a rty m ay be within two years
by the U nited States.
M a rried W o m e n . The property and pecuniary rights of every
married woman a t th e tim e of m arriage, or afterw ards acquired
by gift, devise, o r inheritance, or by her own labor, are n ot subject
to the debts or contracts of her husband, and she m ay m anage, sell,
oonvey, or devise th e sam e by will to th e same extent and In the
same m anner th a t her husband can property belonging to him. For
eivU injuries dam ages m ay be recovered from a m arried woman
alone, and h er husband is n ot responsible therefor. Contracts m ay
be made by a wife, an d liabilities incurred, and th e sam e enforced
by or against her to th e same extent and in th e sam e m anner as if
«he were unm arried. All laws which Impose or recognize civil disa­
bilities upon a wife which do not,exist as to the husband are repealed.
Wife m ay reoord list of her property and such list is prim a facie
evidence of her separate ownership, and property n o t so reg­
istered Is deemed prim a facie the property of the husband.
Neither husband n or wife is liable for th e debts or liabilities of the
other incurred before m arriage. H usband and wife m ay m ake convey­
ances an d transfers and create Hens between themselves, and either
may constitute th e other his or her atto rn ey In fact. A woman
becomes of age a t tw enty-one or upon being m arried according to law.
M o rtg a g e s . Mortgages are executed, acknowledged, and recorded
in the sam e m anner as deeds. No covenant is implied for the
aym ent of th e sum intended to be secured. Record of assignm ent
i not notice to th e m ortgagor, his heirs, or personal representa­
tives. Mortgage m ay be discharged by entry in m argin of record
signed by m ortgagee or his personal representative or assignee and
witnessed by th e commissioner or deputy, or by certificate executed
and acknowledged as o th er conveyances. Foreclosure is by action
•f an equitable n ature In which a deficiency judgm ent m ay be had.
N otes a n d B ills of E x c h a n g e . On all billB of exchange and
all negotiable prom issory notes, orders, and d rafts payable a t a
future day certain w ithin the district, grace Is allowed: b ut grace
is not allowed on bills of exohange. notes, or drafts, payable a t sight
ar on dem and.
R eco rd s. An unrecorded conveyance of real property is void
as against an y 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 dlstrlot are recorded with the clerk of t h a t divi­
sion ofTthe d istrict court w ithin the lim its of which such lands are
situated.
R e p le v in . The plaintiff, a t any tim e after the commencement
•f an action to recover th e possession of personal property and before
Judgment, m ay claim the im m ediate delivery of such property upon
filing an affidavit showing th a t he is the owner of th e same or entitled
to the possession thereof; th a t the property is unlawfully detained
by defendant; the alleged cause of detention; th a t the same has not
been taken for a ta x assessment or fine, pursuant to a statute, or
seized under an execution or attach m en t against the property ol
the plaintiff: or, if so seized, th a t It is exem pt; and the actual value
• t the property
S ervice. (See Actions.)
S u p p le m e n ta r y P ro c eed in g s.’ (See Judgm ent and Execution.)
T ax es. Every person or corporation prosecuting or attem pting
to prosecute an y of th e following lines of business w ithin th e district
must first apply for and obtain license so to do from th e district
oourt or a subdivision thereof, and pay per annum for such license
for th e respective lines of trad e and business as follows: Salmon
tanneries, 4 cents per oa*e; salmon salteries, 10 cents per barrel;
fish oil works, 10 cents per barrel: fertilizer works, 20 cents per ton;
freight and passenger tranportations lines, propelled by mechanical
power on inland waters and ocean and coastwise vessels doing local
business for hire, $1 per ton on net tonnage railroads, $ioo p e r
mile; tram ways, $10 per m ile:'saw -m ills, 10 cents per thousand feet
on lum ber sawed; quartz mills, $8 per stam p; m ercantile establish­
ments and m anufactories doing a business of under $4,000 per annum ,
$10, and in proportion to the am ount of business done to $500 for
establishm ents doing a business of $100,000 per annum ; in other lines
of trad e and business th e am ount is fixed for each and ranges from
$10 to $500.
W ills. E very person of twenty-one years of age. of sound m ind,
may dispose of all his or her property by will, saving a widow s dower
and a husband’s rights as ten an t by the curtesy. Will m ust be in
writing, signed by th e testato r, or under his direction, In “ Is¡presence,
and attested by tw o or more com petent witnesses subscribing their
names in th e presence of th e testato r. A will by an unm arried person
is revoked by his subsequent m arriage. Children or descendants
of children n o t named or provided for in th e will take as if testator
bad died Intestate. A m ariner a t sea or soldier in m ilitary service
may dispose of his personal property as a t common h w . ftooi
of nuncupative will m ust be m ade w ithin six m onths, and the words
or their substance reduced to writing within th irty days after they
are spoken. A person owning property in, b u t not an Inhabitant
of, th e d istrict m ay devise or bequeath the same^ according .to the
laws of his domicile. If such will be probated w ithout the district,
copies of th e will and th e probate thereof, certified by the clerk or
the court in which tt was probated, w ith the seal of the court affixed
thereto, if there be a seal, together with a certificate of the cniqr
Judge or presiding m agistrate; th a t the certificate is In due form,
and m ade, by th e clerk Or o th e r pereon having the l ^ a l custody
of th e record, may ‘be recorded, adm itted in evidence, or contested
and annulled as if executed and proved within the district,

S


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1551

S Y N O P S IS O F

T H E L A W S OF ARIZONA
RELA TING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
Revised by C . B. W il s o n & G e r a r d T. W a l l J A ttorneys a t Law.
Flagstaff, Arizona.
A c c o u n ts. When stated draw Interest; when action Is upon
itemized account and affidavit of party, his agent or attorney is
attached, stating th a t such “account Is, within affiant’s knowledge.
Just and true, th a t it is due, and th a t all ju st and lawful offsets,
claim ants, and credits have been allowed,” Is prima facie evidence,
unless one day before trial, defendant files w ritten denial of an y item
under oath.
A c k n o w led g m en ts. The form of an ordinary certificate of ackn'owledgment shall be substantially as follows:
“ State of Arizona,
)ss
County of................................................................• • • • • • )
This instrum ent was acknowledged before me th is ...........day
of
...........A. D ..................... . by (if b y a natural person or persons
here insert name or names; if by a person acting in a représentative
or official capacity, or as attorney in fact, then insert nam e of person
as executor, attorney in fact, or other capacity; if by an officer or
officers of a corporation, then insert nam e or names of such officer
or officers as the president or other officer of such corporation, naming

m N••otary P ublic.'...........
; ............

b

......................................

(Or other officer) |g §
(M y commission expires....................... I ............ • ) . B
Every instrum ent affecting real property in this sta te executed,
acknowledged and certified in any other sta te or territory in accord­
ance with».the laws of such sta te "or territory, shall be valid and en­
titled to record as if executed in accordance w ith th e laws of this
state. .'
A ctio n s. Distinction in forms between law and equity are abol­
ished. Pleadings are: Complaint and answer, and in some eases a
reply.
A d m in is tr a tio n Of E s ta te s . Lie in Superior C ourt. * No public
adm inistrator. W here person dies intestate letters shall Issue.
A ffidavits. M ay be taken before any officer authorized to take
acknowledgments.
A lien s. : Unless rights are secured by treaty cannot hold land la
the state, inay acquire by inheritance, or in ordinary course of jus­
tice in the collection of debts; m ay acquire liens on real estate, m ay
lend money and, secure same on real estate, b u t title so acquired m ust
be sold within five years; m ay acquire patented mines and hold
stock in domestic corporation owning unpatented mines.
The laws provide th a t the laws of the state pertaining to aliens
shall not be construed as to conflict in any m anner w ith any rights
existing ,under; and by virtue of any treaty of th e United States
with any other, country.
A ppeals. Appeals are allowed from justice of peace to superior
court in certain-; cases and from superior court to suprem e court
where am ount involved is $200 or over.
A r b i t r a t i o n . There are sta tu to ry provisions which are not
exclusive of the common law arbitration.
A rre st. Abolished in civil cases, d eb to r, fraudulently removing
property out of territory or concealing it m ay be prosecuted criminally.
A t t a c h m e n t . W rit will Issue on affidavit showing: 1. T hat
defendant is indebted to plaintiff upon a contract, express or implied,
for the direct paym ent of money and th a t such contract was m ade or
is payable in this T erritory, and th a t the paym ent of the same has not
been fully secured by mortgage, lien, or pledge of personal property,
or if originally so secured, th a t such security has, w ithout any a c t of
plaintiff or the person to whom the security was given, become value­
less, and shall specify the character of the indebtedness, th a t th e same
is due to the plaintiff over and above all legal set-offs or counter-claim s,
and th a t dem and has been m ade for the paym ent of am ount due: or.
2 T hat defendant is indebted to plaintiff, stating am ount and char­
acter of debt; th a t same is due and payable over and above all legal
set-offs and counter-claims, and th a t defendant is a non-resident of
this T erritory or is a foreign corporation doing business in this T erri­
t o r y or, 31 T hat an action is pending between the parties, a n d 'th a t
defendant is about to remove his property beyond th é jurisdiction of
the court, to avoid paym ent of judgm ent; and, 4. T h at the a tta c h ­
m ent is not sought for a wrongful or malicious purpose, and th a t the
action is hot prosecuted to hinder or delay any creditor of defendant.
5 No such attachm ent shall issue until suit has been duly Instituted,,
b ut it m ay be Issued in a proper case either a t the com m encem ent of
the suit or a t any tim e during its progress. 6. The w rit m ay issue,
although plaintiff’s debt or dem and be not due under specified facts of
Intent to defraud; no final judgm ent shall be rendered until such debt
or demand shall become due. W rit m ay issue a t 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 am ount equal to am ount sued for
Sureties can be compelled to justify upon notice. W hen more th a n
one attachm ent Is levied on sam e property writs take priority accord­
ing to tim e of levy. (See Liens, Garnishment.)
B a n k s—Savings a n d L oàfî. 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 m ay accum ulate on good
faith loans and such personal property a3 m ay be required in trans-

1553

BANKING AND COMMERCIAL LAWS—ARIZONA

acting its business. To purchase and convey evidence of debt except
national, territorial, and municipal bonds m ust have a capital of
$100,000. Married women an d m inors m ay tran sact business w ith
such banks. Are required to have license an d are exam ined by the
bank exam iner. Provisions are m ade for th e contents of the charter.
B ills a n d N o tes. The negotiable Instrum ent code adopted by the
American B ar Association Is In force. Jo in t obligor m ay be released
without, releasing others. (See Holdings.)
B o n d s. Any stan d ard surety com pany, organized under laws of
United States or of an y state, m ay execute bonds in Judicial proceed­
ings within th e sta te when they have complied w ith license laws.
(See G uaranty Companies.)
C h a tte l' M o rtg a g e . To be valid against others th a n th e parties
thereto, ch attel m ortgage m ust set o u t th e residence of the m ortgagor
and th e m ortgagee, the rate of Interest to be paid and tim e an d place of
paym ent of th e debt secured, and be accom panied by th e affidavit of
both m ortgagor and mortgagee th a t th e m ortgage is bona fide and
m ads w ithout design to defraud or delay creditors. Im m ediate
delivery of th e m ortgaged property m ust be m ade to th e m ortgagee
and th e change of possession m ust be actual and continued, unless the
mortgage or a true copy thereof shall be forthw ith deposited and filed
In the office of th e recorder of th e county where the property shall
th en be situated. Removal sale, or other disposition of m ortgaged
property w ithout consent of m ortgagee entitles m ortgagee to Imme­
diate possession of It, an d such rem oval, transfer, or sale, or subsequent
encum brance Is felony. If mortgagee perm its m ortgaged property to
be rem oved to another county, he shall w ithin one m onth record his
m ortgage in such o th er county. C hattel m ortgage m ay be fore­
closed in justice court if am ount of debt does not exceed $300; other
wise In district court. Mortgagee m ay obtain possession of property
on default an d sell afte r notice which m ust be served on owner. Upon
stock of goods, wares, and merchandise w ith continued posséssion in
m ortgagor, void. If copy Is filed w ith recorder, original m ust be
acknowledged, and copy certified to by county recorder.
C la im a n d D e liv e ry . (See Replevin.)
C o lla te ra ls. No sta tu to ry provisions—common law prevails.
C o m m u n ity P ro p e rty . (See Conveyances.)
C o n d itio n a l S ales. W here title rem ains in vendor until purchase
pried Is paid, void as to persons n o t parties thereto, and persons
w ithout notice, unless subscribed, acknowledged, an d filed with
bounty recorder.
C o n tr a c ts , (See Bills and Notes.) One or more obligors on a
jo in t o r jo int and several instrum ent m ay be released w ithout releasing
th e others, and m ay be sued separately under certain conditions w ith­
o u t releasing the others. Married women m ay contract as if sole.
C o n v e y a n c e s. Conveyances ol estate In lands for term more th an
one year shall be by instrum ent In w riting subscribed by p a rty m aking
It, o r his agent, duly authorized thereto by writing. A conveyance is
n o t 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 th an th e grantor has passes only
th e estate th a t he actually has. A general g ran t or devise passes the
fee unless expressly limited to a less estate. All deeds to realty m ust
be signed by both husband a n d wife except as to unpatented mining
claims. Deeds m ust be signed and m ust be acknowledged before
some officer authorized to tak e acknowledgment, and properly cer­
tified by him to entitle sam e to registration. The use of th e word
"g ra n t” or “convey" implies the following covenants and none
other: X. T h at previous to the tim e of th e execution of th e con­
veyance th e grantor has n ot conveyed the sam e estate, or any right,
title or interest therein, to any person other th an the grantee. 2.
T h at such estate is a t th e tim e of th e execution of such ebnveyance
free from incumbrances. M arried Women seventeen years of age
and upward m ay convey their own lands w ithout being joined by
their husbands. (See Acknowledgment, Dower, H usband and Wife,
Hom estead.)
C o rp o ra tio n C o m m is sio n , organized under C hapter 90, F irst
Session, Laws 1912. H as general supervision of corporations.
C o rp o ra tio n s i n G e n e ra l. Any num ber of persons m ay become
incorporated for th e transaction of any lawful business. Before com­
mencing any business, they m ust adopt articles of incorporation
which shall be signed and acknowledged by them as deeds and be
filed in th e office of th e Corporation commission a t th e S tate C apital
an d a certified copy thereof filed in th e office of th e C ounty Recorder,
in each county in th e sta te in which they transact" business. The
articles of incorporation m ust contain: 1. T he nam e of corpo­
rators, an d its principal place of transacting business. 2. T he general
natu re of th e business proposed to be transacted. 3. The am ount of
capital stock authorized and th e tim es when an d conditions upon
which it is to be paid in. 4. The tim e of th e com m encem ent and
term ination of th e corporation. 5. By w hat officers or persons the
affairs of th e corporation are to be conducted, and th e tim es a t which
th ey are to be elected. 6. The highest am ount of indebtedness or
liability to which the corporation Is a t an y tim e to subject itself,which
m ust n o t exceed tw o-thirds of Its capital stock. 7. W hether p rivate
property is to be exem pt from corporate debts. Unless so exem pted
stockholders are liable for the debts of the corporation In th e proortlon which their stock bears to the whole capital stock. Must
e published for six days in some newspaper In th e county where
th e principal business is located. Proof of publication m ust be filed
with th e Corporation Commission. Corporations to endure to r
twenty-five years. Corporation m ust file in office of Corporation Com­
mission an appointm ent of agent who is a bona fide resident of this
sta te for three years prior thereto, on whom all notices and process,
Including summons, m ay be served and constitutes personal service.
Charges for incorporation : Recorder’s fees, 20 cents folio. Recorder's
fees, certified copy, 20 cents folio. Recorder's fees certificate to copy,
75 cents. Corporation Commission’s fees, filing cost copy, $10.
P rinters' fees per inch, publishing articles six days, 80 cents. Corpora­
tio n Commission's fees, filing proof, publishing $3.00. Corporation
Commission's fees, filing appointm ent of agent, $5.00. W here charter
provides assessments m ay be levied on shares to par value (1907).
C o rp o ra tio n s . F o re ig n . Before It can tran sact business it m ust
file certified copy of Articles w ith C orporation Commission and
co unty recorder In county of principal place of business, also an
appointm ent of agent upon whom a service personal to th e corporation
m ay be m ade.
C o rp o ra tio n s , i n s u r a n c e . May be organized under provision
peculiarly applicable to Insurance companies.
C o rp o ra tio n s , R a ilro a d .
Are organized under a s ta tu te espe­
cially providing for them .
C o rp o ra tio n s , S a v in g s a n d L o a n . (See Banks and Banking.)
C o rp o ra tio n S to c k , T ra n s fe r of. Transfer of stock shall n ot be
vaUd. except as between the parties thereto, until the sam e Is regularly
entered upon th e books ef th e com pany, so as to show th e nam es of the
person by whom and to whom th e transfer is m ade: th e num ber of their
designation of the shares, and th e date of th e transfer.
C o sts. Plaintiffs who are non-residents, or those who own no
property Upon which execution m ay be levied, are required to give
secu rity fori within ten days a fter order m ade;- bonds for. m ust
authorize judgm ent to be entered against sureties.

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C o u rts . Are th e Supreme C ourt of th e S tate. thp.U. S. district court
for th e D istrict of Arizona; one superior court for each County except
in counties having over certain population in which event two superior
Courts, justices of th e peace, police courts, recorders of cities. The
superior^ court of th e several counties is a court of general jurisdiction
both Civil and criminal. • I t has both original and appellate jurisdiction'
Its original jurisdiction extends to all civil cases where th e amount
involved exceeds $200 exclusive o f interest, a n d in all cases involving
th e title to or possession of real estate. Justice courts have general
jurisdiction when am ount in controversy does n ot exceed $200 00
except when title to real estate is involved. (See Jurisdiction.)
’ *
C re d ito rs ’ B ills. No sta tu to ry provisions.
D ays of G race. None.
D e p o sitio n s. M ay now be taken either upon oral examination
and cross-examination or upon w ritten interrogatories and cross
interrogatories, as is generally provided.
D e s c e n t a n d D is tr ib u tio n . (See Savings Banks.) The law of
com m unity property prevails. The separate estate of an intestate,
when he or she shall die leaving surviving np husband or wife, shall
descend as provided. W hen an intestate leaves surviving a wife o r
husband another m ethod is provided. Children of the intestate
brothers, sisters, uncles and aunts, take per capita. All property
belonging to th e com m unity estate of th e husband and wife
gn
to the survivor. If th e deceased spouse have no child or children; U
the deceased have a child or children, his or her surviving spouse will
take one-half, and th e other half goes to such child or children. The
com m unity property always passes charged w ith the debts against
It. Interm arriage between m an and woman to whom a child or
children had before been bom , and recognition by the father of such
child or children legitimizes th e child or children. ¡Bastards Inherit
from the m other and transm it estates as if legitim ate. The statute
provides for the adoption of heirs. (See Dower, H usband and Wife
Homestead.)
D o w er. Dower Is abolished.
E v id e n c e . The common law rules have not been codified. Parties
m ay be exam ined and the other side n ot concluded thereby. Statutes
of other states and territories purporting to be printed under authority
m ay be read. No one is incom petent to testify because of religious
belief. Certified copies of all records in territory m ay be read. Certi­
fied copies of records of all notaries m ay be read. Court m ay order
Inspection or copy of documents.
E x e c u tio n s. Upon a judgm ent of superior court, executions may
be issued to any county. Lien of dates from levy, and if on real prop­
erty, the description is endorsed on execution and filed with county
recorder. A range levy m ay be m ade upon all of stock under a certain
brand In same m anner as upon real estate. (See Judgm ent, Liens.)
Proceedings supplem ental to execution—when returned unsatisfied,
creditor Is entitled to an order requiring debtor to answer concerning
his property, b u t not elsewhere th an In the county of his residence.
T hird parties m ay, upon affidavit, be required to surrender property.
Court or judge m ay order suit brought to determ ine th e denial of
owning or of having property.
E x e m p tio n s . E very person who is the head of a family, and
whose family resides within this state, m ay hold as a homestead,
exem pt from attachm ent, 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 hom estead in th e Office of the County
Recorder on county where property is situated. Such homestead
exem pt from date of filing said affidavit. The following property
shall be exem pt from execution, attachm ent and sale on any process
issued from any court: 1. T he fam ily 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 viz:
5. T he tools or implem ents of a mechanic or artisan necessary to
carry on his trade; etc. 6. The sewing m achine and implements
of a seamstress actually used in pursuing her vocation. '7. One
watch, one sewing machine, one typew riting machine, and one bi­
cycle.
7a. Five milch cows. 8. T he camping outfit of every
prospector in this state, including his mining tools, saddles and burros.
9. T he farm ing utensils and im plem ents of husbandry of th e debtor,
etc. 10. P oultry n ot exceeding in value twenty-five dollars. 11.
Two horses and tw o 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 autom obile by th e use of which a carm an, drayman,
truckm an, huckster, hackm an, team ster, chauffer, or other laborer
habitually earns his living, and one horse w ith vehicle or harness or
other equipm ent used by a surgeon, physician, constable or clergyman
in the legitim ate practice of his profession, w ith food for such horses
or- mules for one m onth. 12. Fuel necessary for th e use of the
debtor and his fam ily for th e period of six m onths. 13. T he presses,
stones, type, cases and other tools and implem ents used by any
person or copartnership in printing or publishing a newspaper or in
conducting any printing establishpient or by any person hired to use
them ; not exceeding two. thousand dollars in value; together with
stock in trad e 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,
sem inary of learning or school. 15. All moneys received by or
payable to a surviving wife or child upon th e life of a deceased husband
or father, not exceeding ten thousand dollars. 16. All moneys
arising from fire or otner insurance upon any property exem pt from
sale on execution. 17. All moneys, relief, or qther benefits payable
to or to be rendered by any police departm ent association, fire
departm ent 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 exem pt personal
property or by reason of the wrongful taking or detention of such
property by any person, and any judgm ent recovered for such
damages. 19. The earnings of th e m inor child of any debtor or
th e proceeds thereof by reason of an y liability of such debtor not
contracted for the special benefit of such m inor child. 20. One
half of the earnings of the wages or salary of any person for his per­
sonal services rendered a t any tim e within th irty days next pre­
ceding, the levy of attachm ent, garnishm ent o r execution when it
appears by th e affidavit of the debtor or otherwise th a t such earnings
are necessary for th e use of the fam ily residing in .this state, supported
in whole or in p art by him. 21. All arms, uniforms and accoutre­
m ents required by law to be k ep t by any person, and also one gun
to be selected by the debtor. 22. All fire engines___ i .o f any fire
departm ent. 23. All courthouses, jails, etc. T he property de­
clared to be exem pt by this chapter shall not be exem pt from at­
tachm ent or sale in any action brought or judgm ent recovered for
th e purchase price of such property so long as such property remains
in th e possession of th e original purchaser. (See Homestead,Liens.)
F ra u d s a n d F r a u d u l e n t C o n v e y a n c e s. Agreements m ust be In
w riting and signed by th e parties to be charged: 1. B y an executor
or adm inistrator to answer for the debt of his te sta to r or Intestate out
of his own estate. 2. By a person to answ er for th e debt, default or
miscarriage of another. 3. To charge any person upon a n agreement
m ade upon consideration of m arriage. 4. For sale of real estate or
lease-thereof for a term longer th a n 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. E very gift, conveyance, or assignm ent, or transfer, or
charge upon an y estate, real or personal; any suit commenced on
decree. Judgm ent, 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, tenem ents, and here­
ditam ents, deeds of settlem ent, of m arriage, deeds of tru st, and m ort­
gages. are void as to creditors and subsequent purchasers, without
notice, unless properly recorded. The creditor m ust be a Judgment
creditor, and notice m ust be prior to date of Judgm ent lien. A judg­
ment creditor m ay be an Innocent purchaser
Every gift, convey­
ance, assignm ent, transfer or charge m ade by a debtor which Is not
upon consideration deemed valuable dn law shall be void as to prior
creditors, if debtor had not then other property in the S tate suffi­
cient to pay all his indebtedness1. N ot on th a t account, however,
void as to subsequent creditors, ft No gift of any goods and chattels
shall be valid unless duly acknowledged, or proven and recorded, ox
by will, or unless actual possession shall have come to and remained
with th e donor or some one claiming under him. Fraudulent Intent
Is a question of fact and n ot of law. Conveyance shall not be adjudged
fraudulent merely because not for valuable consideration. If any
person shall do or tran sact business as a m erchant or trader, with the
addition of th e words agent, factor, com pany, or & Co., or words of
like significance or im port, and shall fail to disclose th e nam e of his
principal, or partner, or other person who m ay be Interested In such
business by a sign In letters easy to read, placed conspicuously a t the
place where such business Is transacted, or If any person shall transact
business In his own nam e, w ithout any such addition, all th e property,
stock, money an d choses In action used or acquired in such business
except such property as m ay be exem pt from execution, shall, as to
the creditors of an y such person, be liable for his debts, and be. In all
respects, treated In favor of his creditors as his property. Criminal
prosecution io r fraud is provided. (See Conditional Sale.)
G a r n is h m e n t. W rit m ay Issue: 1. Where w rit of attachm ent
has^issued, 2. Upon affidavit th a t the debt is Just due, and unpaid,
and th a t defendant has not, within affiant’s knowledge, property In
his possession subject to execution sufficient to satisfy such debt, and
th at th e w rit is n o t sued o ut to Injure either the defendant or garnishee.
3. Upon judgm ent, when affiant m akes affidavit th a t the defendant
has not, w ithin his knowledge, property In his possession w ithin this
Territory sufficient to satisfy said judgm ent. Proceedings under sub­
division 2 requires a bond In double the am ount of the debt, condi­
tioned th a t plaintiff will prbsecute the suit to effect, and pay all
damages and costs th a t m ay be adjudged against him for wrongndly
suing o u t th e garnishm ent. The proceedings are docketed and Judg­
ment rendered as If In an Independent proceeding. (See A ttachm ent.)
H o lid ay s. Legal holidays are January 1, February 14, February
22, July 4, October 12, Thanksgiving, M ay 30, December 25, Arbor
day. Labor Day, every Sunday and general sta te election day, or
any special election day th a t m ay be called by th e governor, and any
day appointed by th e president or governor. Any promissory note,
bank check, bill of exchange, acceptance, or. other negotiable in­
strum ent, m ade payable a t any future period, which falls due on any
of these days m entioned, shall be considered due and collectible on
the day following, and if January 1, F ebruary 14, F ebruary 22, July
4, October 12, December 25, or M ay 30, and Arbor Day, shall fall
upon Sunday, th en th e M onday following shall be considered as a
legal holiday. W rits of injunctions, attachm ents, replevin, and
prohibition m ay be issued and served on.
H o m e s te a d . Deed to . m ust be signed by husband and wife. (See
Exemptions.)
H u s b a n d a n d W ife. All property, both real and personal, of
the husband or wife, owned or claimed by him or her before m ar­
riage. an d th a t acquired afterw ard by gift, devise, or descent, as also
the Increase, rents. Issues, and profits of the same, shall be hi* or her
separate property. The earning and accumulations^)! the wife and her
minor children In her custody while she has lived or m ay live separate
and ap art from her husband» shall also be the separate property of the
wife. All property acquired by either husband or wife during the
marriage, except th a t which Is acquired by gift« devise, or descent* or
earned by th e wife and her m inor children while she has lived or m ay
live separate and a p a rt from her husband, shall.be deemed th e common
property of th e husband and wife, and during the coverture m ay be
disposed of by th e husband only. Married women of# the age of
twenty-one years and upwards shall have the sam e legal rights as men
Q fthe age of twenty-one years and upwards, except th e r ig h ttp m ake
contracts binding th e common property of th e husband and wife; and
shall be subject to th e same legal liabilities. (See Dower, Convey­
ance.)
I n ju n c tio n . Is Issued, where p arty is entitled to relief and
restraint, is required of some prejudicial act; where, pending litiga­
tion, an act is done which tends to render judgm ent ineffectual, and
when applicant is entitled under principles of equity. Under certain
conditions m ay be granted ex parte a t cham bers or by consent.
Bond m ay be fixed by judge and approved by clerk, except to restrain
collection of money judgm ent, when it m ust be double the am ount oi
■uch Judgment.
In ju rie s —P e rso n a l. E m ployer’s Liability and Compulsory Com­
pensation laws in force.
In s u r a n c e . (See special chapter pertaining to Insurance.)
I n te r e s t. May contract, In writing, for any rate of, n ot exceeding
10 per cent per annum . Any rate exceeding this is usurious. When
no express contract, on bond, bill, note, or instrum ent of writing,
or judgm ent, for money lent, or due on settlem ent of accounts irom
date of ascertained balance, and money received for use oi another,
interest is com puted a t 6 per cent per annum .
J u d g m e n ts . Judgm ents o f superior fcourts become a lien upon all
real estate of judgm ent debtor In the county as soon as. entered ana
docketed. Upon filing w ith th e clerk of th e superior court a transcript
of judgm ent from justice court-or of superior court of another county,
the same becomes a lien on all real estate of judgm ent debtor In the
county. No execution can be issued on any judgm ent after tfie
expiration of five years from the date of Its rendition and entry, unless
■uch judgjnent be revived by scire facias or action for debt be brougnt
thereon within such five years.
J u d ic ia l B o n d s. .(See Bonds.)
L evy. (See Executions.)
•
L icen ses. For gambling prohibited.
L ie n s. AU persons who m ay labor or furnish m aterials In th e con­
struction or repairing of any building, superstructiire, 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 therew ith. 1 0 nx
and secure th e lien, th e person performing labor or furnishing m aterial
must, within sixty days after th e completion of such labor or tn e iurnlshlng of m aterials, file his contract in the office of the county recorder
where the prtfberty 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 p arty owing th e debt, or his agent. Laborers and like liens are
preferred to all subsequent liens, mortgages, and incum brances, an a
■uch as lien claim ant had no notice. Suit to foreclose such liens m ust


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1553

be commenced w ithin six m onths a lte r filing th e sam e In th e recorder s
office. In case of the levy of writ of attach m en t or execution, clerks,
laborers, and employes of debtors have a preference claim for jvages
for services performed six ty days before
°* wF í * * _ „1?*?
3200, upon filing notice of claim unpaid w ith creditor, debtor, and
officer executing w rit Proprietors of hotels, boarding houses, and
lodging houses have special lien on all property or baggage deposited
with them by guests tor price of guests entertainm ent. Agister and
liverym an have lien by sta tu te. (See Judgm ent. M ortgage.)
L im ita tio n s . To recover realty against person In peaceable and
adverse possession under color of title, three years; against such posses­
sion where person bays taxes and has deed recorded, five y ^ r s , other­
wise ten years; to recover lots in city or village against person having
recorded deed, and pays taxes, five years; where p arty in Possession
claims by right of possession only, two years. Personal Actions
One y ean Personal injuries, malicious prosecution, false imprisonm ent, libel, slander, seduction, breach of promise. Actions for.relief
on the ground of fraud; m ust be brought within one y e a r 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. T hree years: Actions ^ r d ^ t
in
writing; on stated or open accounts other th an m utual between m erchants or their factors and agents; all accounts, exceptúas between
m erchants and factors and agents, lim itations run from date of each
Item of delivery. Four years: For penalties or dam ages on any bond
to convey real estate; between partners for settlem ent of partnership
accounts; on m utual or current accounts between m erchants, their
factors or agents, to accrue from cessation of dealings; upon judgm ent
or instrum ent w ithout th e T erritory; bonds of executors, adminis­
trators, or guardian, after death, removal, etc.; specific perform ance,
to contest will after discovery of fraud; and where no provision is
otherwise made. Five y ears: On domestic judgm ent where execution
has been issued within one year after rendition. Six years; debt
evidenced by writing within th e state.
M ines unpatented are real estate for th e purpose of inheritance and
conveyance. Location requires seven m onum ents, three a t each ena,
and one a t discovery. In which notice is to be placed on discovery;
title work consisting of a shaft 4 x 6 x 8 feet deep, or its equivalent
In an open cut so th a t mineral In place Is discovered 8 feet from th e
surface m ust be done and notice recorded within three m onths, and
annual assessment work ainountihg to $100, m aintained each year
thereafter, until p aten t Is ordered.
M in e rs . (See Savings Banks.)
M o rtg a g e s . Mortgage m ay contain power of sale. W hether It
does or not, m ortgage m ay be foreclosed by suit in superior court.
Failure ot mortgagee to lawfully release a satisfied m ortgage lor seven
days after dem and tor th e 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.)
N o ta ry P u b lic . In a» certificates and acknowledgm ents the date
of expiration of commission m ust be stated, as "commission expires—
No certificate of holding office, etc., is required when notary acts in
foreign state or country.
N o tes a n d B ills of E x c h a n g e . (See Bills and Notes.)
P a r tn e rs h ip s using fictitious nam e may file certificate showing
names of partners with county recorders. Foreign partnerships m ay
do so.
P o w ers of A tto r n e y . No special sta tu to ry provisions relative to.
To confess Judgment m ust be executed subsequent to m atu rity oi debt
confessed, and m ust be acknowledged. To convey lands or release
mortgages should be acknowledged as deeds, and recorded.
P ro b a te L aw . (See Savings Banks and Adm inistration of E states.)
P r o te s t. Liability of draw er or Indorser of bill or note m ay be
fixed by regular protest and notice, etc., according to the usages and
eustom of m erchants. (See Bills and Notes.)
R e co rd s. T he superior courts of each county are courts of record.
T he recorder’s office in each county relates to titles of real estate
and personal property, and probate record instrum ent therein is
notice. The m inutes of th e Sanitary Live Stock Board are notice of
all brands and m arks of live stock.
R e d e m p tio n s . From sherifi or judicial sales, six m onths, by
debtors or successors In Interest; any Hen holder m ay redeem within
three m onths thereafter by serving and filing sta tu to ry notice, by
serving notice In five days after end of said six m onths. The same rule
applies to foreclosure of m ortgages and tru st deeds w hether by court
«r under powers of sale.
R e p le v in . For possession of specific personal property which has
not been seized under any process, execution or attachm ent against
the property of th e plaintiff.
S ales. The "uniform sales law ’’ is In force.
S eals. Addition or omission of seals or scrolls to Instrum ents ot
writing In no way affect the force and validity of th e Instrum ent.
Instrum ents executed by corporations m ust have a corporate seal
attached.
«
S erv ice. All summons upon persons shall be personal, or by leaving
a copy w ith copy of com plaint a t the usual place, of residence of
defendant, with a m em ber of his family over th e age of sixteen years;
against incorporated city, or town, or village; upon m ajor, clerk,
secretary, or treasure; against Incorporation or Joint stock associa­
tion, upon president, secretary, or treasurer, director or local agent
representing com pany, or by leaving1a copy of summons and com­
plaint a t the principal office during office hours; upon an y railroad,
telegraph, or express Company, or any agent of such com pany who
resides In or m ay be found In the county where suit Is brought; upon
domestic corporation b y serving on sta tu to ry resident agent, and where
there Is no officer upon whom service can be m ade in th e S tate, ser­
vice m ay be had by delivering duplicate copies of-summons and com­
plaint to th e secretary of th e Corporation Commission, and upon
foreign corporation by delivery to sta tu to ry agent. Personal service
of summons m ay also be had by serving upon defendant by registered
mail,, as provided in statutes.
'
S u its . (See Actions.)
T ax es. Aside from those levied by legislative enactm ent Tor
specific purposes, as tor th e construction and m aintenance of pubuo
institutions, etc., S tate taxes are levied by th e S tate Board of E qual­
ization; county taxes by th e boards of supervisors of th e several
counties, and city taxes b y the common councils of th e various cities.
Railroads are Valued for th e purpose of taxation by th e S tate Board
of Equalization. O ther property is valued by county assessors.
T he assessing of value begins in F ebruary of each year. Taxes
are levied on th e th ird M onday of August in each year. T he lien
attaches on th e first M onday of F ebruary in each year. Taxes
become due n ot later th an the th ird Monday in Septem ber, and
become delinquent i f 1n ot paid on the th ird Monday of December.
The penalty f o r ,delinquency Is 5 per cent. W ithin 60 days after
delinquency action m ay be commenced in d istrict court to foreclose
delinquent real estate ta x Hens, and property sold as under execution.
Personal property tax Is collected b y distress w arrant. Taxes after
delinquency draw Interest a t one per cent per m onth after action

1554

BANKING AND COMMERCIAL LAWS—ARKANSAS

rommenced to foreclose ta x lien penalty or twenty-five per cent la
Added. There Is doubt about th e right to redeem from ta x sales.
char!es°h ° USeS*: Persolial Property In. m ay be sold lor unpaid
T ra n s fe r o f C o rp o ra tio n S to c k s. (See Corporations.)
* * ,n writing, signed by th e testator, or by someone for him, in his presence and by his direction, and m ust be attested
crei lbi? witnesses above the age of fourteen years. In
written
®t»=t ?tb e r ani , tbe testator. W hen th e will is wholly
I IS testator, no witnesses are necessary. N u n cu p ativ e
r«!n
Itehm ade wi*tn Property willed does not exceed in value
miW aL6*8 11 be pr°ved by three credible witnesses th a t the testator
h u 1^ i i? n=n<rtnti,p?rtS n } ° t,ake notlce and bear testim ony th a t such is
mfttPri Vn
the testim ony, or the substance thereof, was com^ riting within six days after th e m aking of such will; in
such case th e.am o u n t willed Is not lim ited. Wills are revocable by
subsequent will, codicil, or declaration in writing, executed with like
nrr^ iitp ,r l r i n i r+hXecution of wU1,, or by testa to r destroying, canceling,
or obliterating, the same, or causing it to be done in his presence or
wTn^u h^fhuenr m arriage, and no provision is m ade for wife. Foreign
JJbJi?’ fhe probate whereof is duly authenticated, m ay be probated
ofer£ o b £ t ° £ r tS °* WU*8 0411 not 1)6 V itiated after one year from date

SYNOPSIS OF

T H E L A W S OF A R K A N SA S
RELATING TO

BANKING AND COMMERCIAL USAGES.
Revised by

M

& E m e r s o n , Attorneys a t Law, Little Rock.
(See Card in Attorneys’ List.)

a n n in g

T®15lfled by the plaintiff as Just and correct prove them­
selves In suits thereon unless denied under oath.
mi ^ owle.d *,“ en ts majr b,® taken within the State before the
*r o rcuJ t ®°Prt, or a Judge thereof, or clerk of any court of
TTniï-nri «♦«♦J’uH®® o t tb® peace or notary public; elsewhere in the
before any court having a seal, or clerk of such court,
ÎSÎhÎ,?,+P
.
S S States
? 5avi??
a 8ea1,
or commissioner
of mayor
Arkansas;
without the
United
before
any court
having a seal,
of a
®?al* Un*ted States consul, or any officer authorized!»*
sddetf he has8aCseai0Untry 40 probate Conveyances of real estate, prol re.Pro5?cut^ under a reformed code of civil proiron?
th®
New
York code chiefly in maintaining the
uistinotlon between
law
and
equity.
Estat®s. Executors and administrators must
Be residents of the State and must give bond In double the value of the
Pn
««®/î^;.^oreî?ni
^ eoutor8
An.in
d administrators
can maintain
actions
to our
courts. Claims
are paid
the following order:
First,, funeral
niE?2?,58ii.8e<i0nj' e^Pepees of last illness; third. Judgments which are
La,*?u8 S l the deceased; fourth, demands presented within
î.1^
1 J1?1'11’ demands presented within one year. AU demands
KS*JÏTCfmH«âi1*n*on?»?reali.a^ barred. Demands must be authenticated
to thn effect that nothing has been paid or delivered
î 2 - î r<L tJleIr aattefaction 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 disaUowed by him
t?
probate court, or sued upon in any court oi
oomjpetent Jurisdlctlçn. Notes and debts secured by mortgages or
«,8t must *e Probated as any other claim, and If not pre­
sented to the executor or administrator within one year after anbarred by the statute of non-claim of one year.
When the note or debt is barred this carries with It a barring of the
mortgage or deed of trust given to secure the notes or debts."
.-♦A® daT&8 in thI,8 Stat,eare “ ade before a Judge,»Justice of the peace.
Ü l f pobho. or clerk of the court; without the State before a Judge!
State** no*ary Publie, Justice of the peace or commissioner for this
Aliens may hold and transmit property In aU 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
?“. eQ2,lta.2le Principles only, and not for matters of form. When not
Nt ulde they are entered of record and become the Judgment or decree
or the court
D e f n 4 “ ay be arrested for debt only when the
Pjalntiff files an affidavit charging that the debt was fraudulently con­
tracted, that it Is Just, giving its amount, and that he believes that the
2® .2d5?* *s abpnt to depart from the State, and, with intent to deDraud 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
tie s ^ the possession of himself or of others for his use, and is about
s Îaî e not leaving sufficient property therein to
satisfy the Plaintiff s claim. Bond must be given conditioned to pay
the defendant all damages that he may sustain if wrongfully arrested.
A ssignm ents 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 thé 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
111 “ le t° 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
nose up their accounts under the direction of the chancery courts
Corporations can not prefer creditors.
*


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m ay be sued o ut where th e defendant is a foret«.
corporation or non-resident, or has been absent from th e s ta tk reSli
p c n.ri}®' ,®r bas left the S tate with Intent to defraud his creditors°ni
has left the county of his residence to avoid the service of siimmluii1
ahnnt1
8£ tb a t 8Um*pons can n ot be served on hlm for u
? r h?8 removed a m aterial p art of his propertyout
f te te . n ot leaving enough to satisfy his creditors, or haesoW
conveyed or otherwise disposed of his property, or suffered it tn
sold with the fraudulent intent to cheat, hinder, or delay his creditors*
or Is about so to do. I t is obtained by filing an affidavit statini“a*a re of the plaintiff’s claim, th a t it Is Just, its am ount and theexist!
®£®°.ottbe ground, and by giving bond conditioned to pay all dam ae£
'riiL rtAf®^811 * ina^, sustaln if the attach m en t is wrongfully sued ou?
J b ? defendant is allowed to traverse th e attachm ent, and th e affidavit
*ray.ers® then stand as pleadings upon which the issue is tried*
i i *be attach m en t ls_dissolved, the defendant m ay have an assessment
“i ^am ages upon the bond in the same suit. Persons eiaim®8 F
attached property m ay interplead in the same action. Attachment!
m ay be sued o ut before the d eb t is due where the defendant has sold
otherwise disposed of his property, or perm itted it to ba
22*4
ha ira,Uid ull n t Intent to cheat, hinder o r delay his creditors
or is so to do, or is about to remove his property, or a m aterial n»rt
in f h?s ^ S d ito ra 6 tatC m
th ®,b ten t 01 cheatlll£ blnderingor d e l ^
w ^ a n k s - T he banking business is controlled by a sta te bank depart.
tk e direction of a bank commissioner. Any five or more
m ajority of whom m ust be residents of this state mav
appJy
commissioner to be incorporated and the shares of capital
m !vkQicn h be 2 ^ 1?ss th an $25 nor more th an S100 each: application
}Pay alf ° be m ade by an individual or firm and shall then be in such
eommissioner m ay prescribe and such individual or firm
a S8?3® Ulrich will show th a t it is n ot incorporated- all
<AW2 ? d by such bank shall be held in th e nam e of the bank
r n th e nam e of th e individuals composing th e firm and all
bank are exem pt from execution by any
such individual or firm until ail liabilities of th e bank have
b®?n paSd Vupon
death of an individual banker his widow is not
navnw
.t of all depositors
i >I° p^ ty ofand
t2 e other
bank creditors.
except such as rem ains after the
paym
ent
a
or individual m ay do a banking business until
have peen
b eeI^paid
aW h t?f
£ ent
on
authorized
nave
to tho
the ^bank
commissioner.
Fees capital
a t th e stock
same shall
rat«
m ust be paid on each increase of the capital stock and for each amendS®?«
suPPlement to the articles of agreem ent, except for an increase
£5n*!» £ s^ ck■ there shall be paid an additional fee of $10. There
^.™2umssionSr an allnual fee of $15 in addition to apaym ^nftA°c„n^y c.®?^s on each $1,000 of the bank’s capital stock.
fftZi?„al?Tup caP1i»I stoPk of »ny bank organized after the pasauS? °ft
banking act (M arch, 1913) cannot be less th an $10,000 in
cities havm g less th an 2,500 inhabitants, not less than $20,000 in cities
more th an 2,500 and less th an s ’.OOOi «habitants, n ot C S

fn d n o rii« th a ^ « ^ OnnbtiianI^ ’0ft0 and less than 10,000 Inhabitants
ThB hinwi!, i 52’000 in Cities having more than 10,000 inhabitants.
capital stock fs l l o ooa110 aPPly t0 trUSt COmpanies whose minimum
^ .T J e affairs of an incorporated bank are controlled by a board of
aw«
^ bosen from th e stockholders; each director m ust be the
owner of not less than $500 w orth of stock, p ar value, fully paid-up and
not hypothecated: every bank m ust have on hand a t all tim es as a
l 5 Per cent of tb e aggregate of its deposits
are nam e for the debts of the bank in the sum of the
Sto
ck
1
A
^
Mn
,
?QOCA
5° of 1913, page
*° the
»m ount invested in such
stock. (Act No. 113, Acts
462).
B ills.
E x ch an g e a n d P ro m is so ry N o te s. T he Negotiable
instrum ents Law went into effect on April 22, 1913.
*
„Alice p2f8on f 5 n, 'be Charged as an acceptor ot any bill of exchange
unless his acceptance shall be In writing. If the acceptance Is
w ritten on another paper th a n the bill, it shall n ot bind the
accepto r except in favor of th e person to whom such acceDtfhSu ?ball have been shown, and who. on th e faith thereof,
hAniA,-b a #® rc<ftnT*d tbe biii for a valuable consideration. Every
burner of a blU presenting it for acceptance m ay require an
“ cccp^ u®® 011 tbe bUl: otherwise th e bill can be protested for
non-acceptance. N otw ithstanding the above provisions any one
promising to accept a bill is liable to any person to whom a promise to
sccept it m ay have been m ade; and wno. on th e faith of the promise,
has draw n and negotiated the bill. A ny person on whom a bill is
brawn, and to whom the same m ay be delivered for acceptance, who
bestroy It or refuse within tw enty-four hours or such tim e as the
holder m ay allow to return the bill accepted or n ot accepted to the
holder, shall be deemed to have accepted th e same. When the bills
become due on any holiday, they are payable the next succeeding busi­
ness day. Instrum ents falling due (or becoming payable on) Satur­
day are to be presented for paym ent on th e next succeeding business
aa»y, except^ th a t instrum ents payable on dem and m ay be presented
f°LPay2 ient; 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-paym ent: If the bill is drawn on any place in this S tated 2 per
Twf'i Ji.„?a??blc to the states of Alabama, Louisiana, Mississippi.
Tennessee, Kentucky, Ohio, Indiana, Illinois, or M issouri, or an y p o u t
on the Ohio River, 4 per cent; if drawn on any other place in th e United
S tates 5 per cent; if beyond the lim its of the United States. 10 per
M
l be brawn by any person a t any place within th is State,
?hi, a t S i
per cen t; if drawn by any person a t any place without
this S tate, b ut within the lim its of th e United States, 6 per cent: if
brawn by any person w ithout th e lim its of th e United States, 10 per
cent. The holder of any bill protested for non-paym ent or non-accept­
ance is entitled to costs of protest and interest a t th e rate of 10 per cent
gw annum on th e am ount of th e bill from d ate of protest. T he term
u n i of Exchange Includes all drafts or orders drawn by one person os
another for the paym ent of a sum of m oney specified therein. Bills
and notes given for patented machines, im plem ents, substance, or
Instrum ents of an y kind, given to any citizen of this S tate, are not
commercial paper, unless executed on a printed form, and showing
tor w hat consideration they were executed. This applies to patent
rights and rights to use any patented thing of any kind. B ut this
provision does not apply to m erchants and dealers who sell patented
things in the usual course of business. All blank assigments are taken
to have been m ade on sqch day as shall be m ost to the advantage of
the defendant. In other respects the general rules of commercial
law apply.
B ills o f L a d in g . (See W arehouse Receipts and Bills of Lading.)
C o lla te ra ls are governed by the law m erchant.
C o n tr a c ts touching commercial m atters are governed by th e law
m erchant.
C o n v e y a n c e s m ay be 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
a5 k2 0Wledg:ed- Dower can be relinquished only by the wife Joining
the husband. The wife m ay convey property acquired since October
30. 1874, by deed as a single person w ithout her husband Joining her.
or by joining with him in the form above. The wife m ay convey by

BANKING AND COMMERCIAL LAW S—ARKANSAS
nnwer of attorney and make executory contracts or sale. Deeds
SrhTch have been recorded and are properly acknowledged provethemILives Any substantial departure from the form of acknowledgments
««scribed by the statute, such as the omission of the words conSri^mtion'’ or “purposes.” makes the acknowledgment and record
««id- hut statutes have been passed from time to time curing defeoX°‘: acknowledgments previously made. Such a statute was Passed
to 1907 . A niw Curative Act was passed and approved Febru­
ary 10. 1911.
rin rn o ratio n s are organized only under general Incorporation laws.
n,i*iness corporations m ust consist of not less th an three persons who
•hall elect a board of directors. The president and secretary are to be
Elected by the board and th e president m ust be a member of It. The
Secretary and treasurer m ust reside and keep th e books of th e oomnanv within th e S tate. The articles of association m ust be signed by
the ^president and a m ajority of th e directors, and m ust be accom­
panied by a certificate signed in a like m anner and sworn to by the
MMident and a m ajority of the directors, setting forth th e purpose of
Pk. corporation, th e am ount of Its capital stock, the am ount actually
naid in, tne nam es of its stockholders and the num ber of shares held
by each respectively, and th e articles and certificate m ust be filed in
the office of the clerk of the county in which the corporation is to
transact business and th en w ith the clerk’s endorsem ent in tn e office
S the secretary of S tate. The stock can be transferred only upon the
company’s books, and a record of the transfer has to be deposited with
the county clerk in order to be valid as against creditors of th e tran s­
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 statem ent 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 m ay be wound up on the suit of any
creditor or stockholder by a decree of the chancery court. Pr<*er*
ances by insolvent corporations are forbidden. Shares of stock arc in
denominations of 825 or $100. Before any corporation, foreign or
domestic, can do any business in this State, an annual franchise tax
must be paid to th e State Treasurer, to-w it: One-fifteenth of one
per cent each year upon the proportion of the outstanding capital
stock of th e 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 $ 10 0 .00 .
All foreign pr domestic insurance companies, of whatsoever nature,
doing business in this sta te 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 erf
$200, this tax being in lieu of the tax on the capital as provided in
^ ^ v e ry 5 investm ent com pany, foreign or domestic, except N ational
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 th e S tate, or sell building stock or loan invMtmente*
•hail file In th e office of th e Bank Commissioner, together with a fee
of $5.00, in addition to the fees required of all incorporations, the
following docum ents: A statem ent showing in detail the plan upon
which it proposes to tran sact business; a copy of all contracts, Donas
or other instrum ents which it proposes to m ake with or sell to its
contributors; a statem ent showing name and location or company
and an itemized account of its actual financial condition and any other
such information which the Bank Commissioner m ay require; if
such company be a co-partnership or unincorporated association, n
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 sta te or territory
or government, incorporated or unincorporated, it shall file a copy oi
the laws of such sta te or governm ent 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 organi^ T h e Bank Commissioner shall examine all such papers and m ay
admit or reject such com pany in his discretion; a com pany rejected,
or whose right to do business is revoked by the Bank Commissioner,
may, within tw enty days, appeal to th e chancery court of any ^ u n t y
In the state where its principal office is located or principal agent residi»

If it be found that the refusal or revocation was justified, the cost
■hall be paid by the company; otherwise by the state as provided by
"^Anj^ individual or persons, co-partnerehips. corporation .com panies
or association, dom estic or foreign, which shall sell any building or
Investment contracts or like securities on which PjWinenljEi
made from tim e to tim e, shall first enter into a bond w ith th e S tate or
Arkansas in th e sum of $20,000 for th e faithful perform ance of its
contract.
, A
. .
Foreign Corporations shall, before doing business In the S tate, by
Its president file in th e office of the secretary of S tate a certificate
under th e seal of th e com pany nam ing an agent, who shall be a citizen
of this S tate upon whom service of process can bp made. ijue certi­
ficate shall sta te th e principal place of business ofI th e ®°*p°iaw on.
and service on th e agent shall bind it. The corporation m ust also file
a oertifled copy of its ch arter together w ith a statem ent of its assets
and liabilities, and th e am ount of its capital employed in this ste te
In the office of th e secretary of S tate, and In the office of the county
where it opens an office, and m ust pay same fees as are refioired or
home corporations. I t m ust also file a resolution of M» hoard of
directors consenting th a t service of process on any o^j^s agents or on
the secretary of S tate shall be a good service. If it s u e s In the federal
court or removes a su it there w ithout consent of its a u v e m a ^ , its
right to do business is revoked. Doing business here
ance w ith th e law subjects the corporation to a fine of im t lesstn an
$1,000. These requirem ents do not apply to mllroa4,OT thlCM^PA
companies th a t had built lines in the S tate prior to Feb. 16, 1899. i i
any corporation fails to appoint an agent, service of process on the
auditor of S tate shall bind It. No foreign corporation can sue on any
contract m ade in this S tate until these provisions are complied w ith.
C o u rts. The suprem e court Is held a t L ittle Rock and has Jurisdiction of appeals from th e circuit and chancery courts. JAhU coun­
ties separate courts of chancery have been established. The estates
of deceased persons are entrusted exclusively to th e
courts,
with right of appeal to th e circuit and thence to the supreme court.
Claims against counties are heard by the county court, as also m atters
touching paupers and th e like The justices courts have jurisdiction
of m atters of contract n ot exceeding $300, and m atters of to rt not
exceeding $100. Two term s of the circuit and chancery court and
four of the county and probate courts are held in each county per year.
D eeds. (See Acknowledgments and Conveyances.) g
D e p o sitio n s m ay be taken In the S tate before any ijtdge
nt
a court of record, justice of the peace, mayor, or n o tify , public* out
of the S tate before a commissioner for this S tate, judge. Justice of the


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1555

peace, mayor, notary public, or person commissioned by the court or
>y consent of parties.
D e sc e n ts a n d D is tr ib u tio n s . P roperty 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. Illegitim ate children Inherit
and transm it an inheritance from th e m other in the- same m anner as
if legitim ate. If the parents of illegitim ate children subsequently
Interm arry and the father recognizes them as his, th ey shall be deemed
legitimate. In default of heirs the whole property goes to husband,
or wife, and in their default to the S tate. 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 ten an ts in
common.
D ow er. Where there are children the wife takes one-third of the
husband’s personal estate absolutely and one-third of the real estate
of which he was seized a t any tim e during the m arriage, for life. Where
there are no children she takes in a new acquisition one-half of th e 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 iof
life against heirs and one-third for life against creditors
E x e c u tio n s from the circuit court are returnable in sixty days,
those from Justices’ courts w ithin th irty . They m ay be stayed for
six m onths by giving bond. They are a lien on the p^opert^ o f t h e
defendant in the county from the tim e they come to the officers
hands. The officer before levying on personal property, the title
to which is doubtful, m ay require the plaintiff to give him an Indem­
nifying bond, and then suit m ust be brought by the claim ant upon
the bond. The defendant and other judgm ent creditors have one year
In which to redeem from -the sale of real estate.
case the writ is
returned nulla bona the plaintiif m ay proceed by bill of discovery
against the defendant and exam ine him on oath, and enlorce a sur­
render of concealed property by Imprisonment.
•
E x e m p tio n s . Unm arried persons are entitled to $200 and m arried
persons and heads of families to $500 in selected articles of personal
property as exem pt against debts by contract. Persons wjio are
married or heads of families are entitled to a hom estead as against all
debts, except the purchase-money, specific liens, JAborers and m echan­
ics’ liens, taxes and claims for tru st funds converted. The homestead
in the country is not to exceed 160 acres, and In town not to exceed
one acre, nor to be w orth more th an $2,500, but the
I*?'?*®!
stead is not to be reduced to less th an 80 acres nor th e town hom estead
to less than one-fourth of an acre, regardless of
hom estead
goes to the wklow and minor children after the husband s death. The
homestead can only be conveyed by deed in wh>ch the wife JolM and
which Is acknowledged by her, and if th e husband neglects to claim
the homestead the wife m ay do so.
F ra u d . The English sta tu te of fraudulent conveyances has been
^^D aurnistim epts m ay be sued o ut pending suit upon giving bond In
double the am ount garnished, or after judgm ent w ithout bond.
Holidays. The following are set ap a rt and designated as legal
holidays: Christm as D ay (December 2 5 th ); New Y ear s D ay (-Jan­
uary 1st), July Fourth; Thanksgiving D ay (last T hursday m Novemcer)- W ashington’s birthday (February 22nd); Labor D ay (first
M onday in September); General R obt. E . L e e s birthday (January
10th); All general bi-ennial election days; B irthday, Jefferson Davis,
President of th e Confederate S tates of America (June 3 rd), Arbor
D ay (first Saturday in M arch, a special day). W hen bills become
duey on any of these days, they, are payable th e next busmess day^
October 12th is Columbus D ay (a public holiday, b u t not affecting
commercial paper, or the execution of w ritten instrum ents, nor
interfering w ith judicial proceedings),
H u s b a n d a n d W ife. (See Married Women.)
I n ju n c tio n s may be issued by circuit Judges, «ffianceUors, or the
lodge of any court in which suit Is brought. The person applying
for the Injunction m ust give bond as the court or judge m ay direct.
In so lv e n c y . The Supreme C ourt has held th a t th e Federal Bank­
ruptcy Act has suspended the S tate insolvency laws.
I n te r e s t. The legal rate of Interest is 6 per cent, b u t parties m ay
contract in writing for not exceeding 10 per cent, in terest exacted in
excess of 10 per cent forfeits th e debt. In com puting th e interest
commissions paid to the agent of the lender are counted as interest.
W here usury is charged the borrower m ay go into equity and have the
debt and securities cancelled w ithout tendering jin^A?mount;lhwfffij^
due. Judgm ents bear the same rate of interest as the obligation sued
on. " Judgm ents against counties bear no interest.
J u d g m e n ts (See Interest) are liens upon th e real estate of the
debtor "in the county where rendered for three years only. The lien
m ay be renewed and continued for three years by scire facias. Judgm ents of the U nited States and other courts can be m ade liens on lands
in counties other th an th a t where they are rendered by filing a certified
copy in the office of th e circuit clerk. A judgm ent survives tor ten years.
J u r is d ic tio n . (Sec Courts.)
. ..
j
H e n s . Mechanics, builders, artisans, laborers, and others doing
any work upon or furnishing any m aterial for any building or erection
under any contract with the owner or his agent, contractor or subm n'traotor shall have for such work or m aterial furnished a lien on
the building or im provem ent together with the land on which It sto n d j
to th e ex ten t of one acre if in the country; if In a c i t y t h e l o t or land
upon which th e erection Is situated. H otel keepers
®S
baggage and personal effects of guests. L iverym an have lien on all
stock and property left In their care.
■ . . __ . A
L im ita tio n s . Suits for th e possession of real estate m ust bo
brought within seven years, saving to minors, married women, and
lunatics three years after their disabilities are removed. Actions for
recovery of lands sold a t judicial sales m ust be brought within five
yearsf saving to minors and lunatics three years after removal to
disabilities. Actions for the recovery of lands held under ta x title
m ust be brought in two years. Actions for forcible entry and detainer,
on contracts not in writing, for trespass and for libel, w ithin three
vears Actions for criminal conversation, assault and battery, false
im prisonm ent, and slander, w ithin one year. Actions on written
Instrum ents, w ithin five years: on judgm ents, within ten years: on
bonds of executors and adm inistrators, w ithin £ffht « e a r n . I n jMI
cases, except'actions for th e recovery of limds, minors and lunatics
have, after removal of th eir disability, the sta tu to ry period in which
to sue. Verbal promises or acknowledgments do n ot take a claim
out of the sta tu te. One year Is allowed after dismissal of a suit to
which to begin a new action. No person can avail himself of a d u ability which did not exist a t the tim e the right of action
’„„m0
endorsem ent of paym ent m ade by the payee or on his behalf is suffi­
cient proof to take the case o ut of the sta tu te.
L im ite d P a r tn e r s h ip s m ay consist of one or more general, and one
or more special partners. The la tte r of whom shall constitute in cash a
specific am ount as his share of the capital; beyond which he is not
liable for firm debts. Those form ing such partnership m ust m ake
and file in office of circuit clerk of county, and principal place of busi­
ness, a certificate showing nam e of-firm, nam es of partners, distin­
guishing between general and special, nature of business, am ount
of capital contributed by each partner, period-of commencement and
term ination of partnership. Business to be conducted by general
partners and suits brought by or against them .

1556

BANKING AND COMMERCIAL LAWS—CALIFORNIA

M a rrie d W o m e n . THe property, real and personal, ol married
women rem ains th eir separate estate as long as they choose, and may
P®. ? eY^®e<^ .9 r bppvcyod w ithout the husband's assent, and Is not
subject to his debts. \ If she dies w ithout m aking any disposition of
her real estate, he is entitled to curtesy. . She m ay carry on any bust*
ness or perform any services on her own account, and her earnings are
hers, an a she m ay sue alone in respect of her separate property. She
can bind herself by contract only in reference to her separate estate or
Dusiness. She can n ot enter into partnership with her husband. If she
does n o t file a schedule of her personal property, the burden of proof
Is on h er to show th a t it is hers.
an<^ M in in g . Under control of commissioner of mines.
™} docum ents relating to mines m ust be recorded in the recorder’s
omce of th e county; and miners of the county m ay make by-laws
regarding th e tim e, m anner, and am ount of work necessary to hold
claims and other rules and regulations not In conflict with law. E xten­
sive provisions are m ade for the protection of the health and safety
of miners. (Acts 1893, p. 213). Miners have a lien on the output,
m achinery, and tools used to secure paym ent for work done. Three
r ^ h tf P°sses£aon a mtae, with work required by law, gives possessory
M o rtg a g e s are not liens as against an y one, though such person
nas actual notice of their existence, until they are acknowledged in
th e form prescribed and filed for record. Mortgages of real estate
are recorded In the county where the land lies, and mortgages of
personal property in the county of the m ortgagor’s residence. If the
m ortgagor of personality is a non-resident the mortgage is recorded
W f f l county where the property is situate. Sales under mortgages
and deeds of tru st can be made only after appraisem ent, and the
property m ust bring tw o-thirds of the appraised value. In case it is
offered and fails to bring the required am ount real estate m ay be
offered again after one year and personal property after sixty days,
and is then sold for w hat it will bring. The m ortgagor of real estate
has one year from the date of sale in which to redeem. In action to
foreclose a mortgage, it is sufficient defence th a t the debt (which It
recites). Is barred by sta tu te of lim itations.
Chattel Mortgages m ay be acknowledged ana filed as other m ort­
gages, or they m ay be endorsed “ This instrum ent Is to be filed but not
recorded, signed by the m ortgagee, and m ay then be filed In the
recorder s office with the same effect as though recorded. Mortgages
of personal property reserving in the m ortgagor the power of disposi­
tion are fraudulent.
M o rtg a g e s a n d D eeds of T r u s t m ay be enforced by foreclosure
a t an y tu n e within th e period prescribed by law for foreclosing m ort­
gage or deed of tru st so far as th e property m entioned and described
in such m ortgage or deed of tru st is concerned, b ut no claim or debt
against th e estate of a deceased person shall be probated against
such estate whether secured by m ortgage or deed of tru st or not
« x ceptw ithin th e tim e prescribed by law for probating claims against
S&ICt 6St&t6>

P o w ers o f A tto r n e y . Lands m ay be conveyed by power of a tto r­
ney* which Is acknowledged as deeds and recorded in th e county
where th e lands lie.
P ro b a te L aw . (See Adm inistration of Estates.)
P ro te s ts . (See Bills of Exchange and Promissory Notes.)
R e co rd s. (See Acknowledgments, Conveyances. Mortgages.
Chattel Mortgages, and Powers of Attorney.)
R e d e m p tio n . (See Executions and Mortgages.)
R e p le v in . The plaintiff in replevin may nle an affidavit describing
the property, stating Its value and the am ount of dam ages he expects
to. recover, his title, th a t the property is wrongfully detained by the
(lelenuaiit* th a t it has not been taken for a tax or under process against
plain tin , and th a t his cause of action has accrued within three yeais
and upon giving botffi In double Its value, the property shall be taken
irom th e defendant and given to the plaintiff pending the suit, unlese
the defendant within two days a fter It Is taken gives a cross-bond.
R ev isio n . The last revision of th e statu tes was In 1904.
T ax es are a lien between vendor and purchaser from the first Mon­
day In December. They are payable between the first Monday In
Jan u ary and the 10th of April. In case of non-paym ent a penalty of
25 per cent Is added. Lands m ay be redeemed within two years by
paying taxes, penalty, and costs, w ith 10 per cent interest. Minors,
lunatics, and persons in confinement m ay redeem within two years
after their disability is removed. (See also Corporations.) .
T e s tim o n y . (See Evidence.)
T ra n s fe r o f C o rp o ra tio n S to c k . (See Corporations.)
T r u s t C o m p a n ie s m ust have a paid-up capital of $50,000, and
™J?2uJ?^es
5 Population exceeding 50,000, they m ust have a sub­
scribed capital of not less th a n $100,000. They m ay exercise all the
powers commonly conferred on such companies.
W ages. N o assignm ent or order of wages to be earned in the
fu tu re to secure a loan of less th a n $200, shall be valid against any
employer or the person m aking such assignm ent or order, until such
assignm ent or order is accepted in writing by th e employer and the
said assignm ent or order and th e acceptance of sam e has been filed
with th e recorder of th e county where th e p arty m aking th e assign­
m ent or order resides, if a resident of th e sta te where he is employed.
No assignm ent or order of wages to be earned in th e future shall be
valid when m ade by a paarried m an unless th e w ritten consent of his
wife to m aking such an assignm ent or order for wages shall be attached.
W a re h o u se R e c e ip ts a n d B ills o f L a d in g shall n ot be given
except where th e commodities m entioned are received on the premises,
and are under the control of the warehouseman a t the tim e of its
issuance. No warehouseman shall sell, encum ber, ship, or remove
an y such com m odity for which a receipt has been given w ithout the
written assent of the holder of th e receipt: The sam e provisions cover
owners_and agents of boats and vessels. All warehouse receipts and
J?i.s
ailing are
negotiable b y w ritten endorsem ent and
j . j 1® the same as bills of exchange and prom issory notes, and no
P fr1''?. j 0r w ritten conditions, clauses, or provisions inserted In or
attach ed to them shall in any way lim it th eir negotiability or Impair
the rights and duties of the parties thereto, or persons Interested
therein, or such conditions shall be void. W arehouse receipts given
oy ap y warehouseman or o ther person for goods am i other com­
m odities deposited, and all bills of lading given by any carrier, boat,
vessel, railroad, transportation, or transfer com pany m ay be trans­
ferred by endorsem ent and delivery; and the transferee shall be
deemed to be the owner of such commodities so far as to give validity
to an y pledge, lien, or transfer given, made, or created thereby; and
no property so stored o r deposited shall be delivered except on sur­
render and cancellation of such receipts and bills of lading, unless
such receipts and bills of lading have the words “ n ot negotiable”
plainly w ritten or stam ped on their face. A carrier m ay however
deliver to shipper or consignee goods w ithout presentation of bill of
lading upon receiving from such shipper or consignee bond in double
th e value of the goods conditioned for delivery to the-carrier there­
after th e original bill of lading (acts 1907). Penalties are denounced
against any warehouseman or other person who shall violate any of
th e provisions of this sta tu te. So much of the act as forbids the
delivery of property except the surrender and cancellation of the
original receipt or bill of lading shall not apply to property replevtned
o r rem oved by operation of law.


https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis

, W ills. A will m ust be subscribed by the testa to r or by some Dersm,
for him a t his request in the presence df two attestin g witnesses, and h»
must acknowledge It to be his will"to each of them . He must deck»
tbe tlffie of his subscription or acknowledgm ent to the witness«
th at the Instrum ent is his will and testam ent. The witnesses mus?
sign their names a t the end of the will as witnesses a t the reauest
the testator. If. however, the entire \ylll Is In the hand-writing of til
testator, it need pot be attested, b ut m ay be proved by three witness«
fam iliar with the hand-writing. Such will, however, can not^he
pleaded la bar of an attested will. Wills are revoked by marriage and
birth of Issue, unless provision for such issue is made by settlement
or Is provided for In the will. The will of an unm arried woman &
revoked by her m arriage. A fterbom children, n ot mentioned in th*
will take their regular distributive share. If the testato r fails t«
m ention In his will an y child, or its legal representatives, living at th.
tim e of executing the will, he shall, as to such child, or Its represent!
atives. be deemed to have died Intestate, and such child, or its ren
resentatives. Is entitled to its regular share.
p

SYNOPSIS OF

T H E L A W S OF CALIFORNIA
R ELA TIN G TO

BANKING AND COMMERCIAL USAGES.
Revised by H e n b y G. W. D i n k e l s p i e l
A ttorney and Counselor a t Law. San Francisco.
(See Card in A ttorneys’ List.)
A c c o u n ts . An account Is assignable, and the assignee m ay maintaln an action thereon, although the account is assigned merely for
collection.’ An action to recover a balance due upon a m utual current
and open account or upon an open book account Is barred within four
years. The cause of action on a m utual account Is deemed to have
accrued from the date of the last Item. In the case of an open book
account, each Item becomes outlawed four years after Its date. (See
Actions and Limitations.)
A c k n o w le d g m e n ts . Before an Instrum ent can be recorded. Its
execution m ust be acknowledged by the person executing It, or if
executed by a corporation, by Its president or secretary, or other
person executing the same on behalf of the corporation, or proved by a
subscrlbingw itness, or by judgm ent In an action brought for the
purpose. The p r o o f o r acknowledgment of an Instrum ent may be
made a t any place within the S tate before a justice or clerk of the
suprem e court, and within the city, county, or township for which
th e officer was appointed or elected, before either: (1) A clerk of a
court of record; (2) a county recorder; (3) a court commissioner:
(4) a notary public; (5) a justice of the peace. T he acknowledg­
m ent of an instrum ent m ust n ot betaken, unless the officer taking it
knows o r h a s satisfactory evidence, on the oath or affirmation of a
credible witness th a t the person m aking such acknowledgment is the
individual who is described in, and who executed th e instrument:
or if executed by a corporation, th a t the person m aking such acknowledgm ent is th e president or secretary of such corporation, or other
person who executed It on its behalf. Officers taking and certifying
acknowledgments or proof of instrum ents for record, m ust authenti­
cate their certificates by affixing thereto their signatures, also their
seals of omce, if by th e '1laws of the State or country where the ac knowledgment or proof is taken, or by authority of which they are
acting, th ey are required to have official seals. Acknowledgments
taken out of this S tate to be used within this S tate m ay be taken
a notary public, a commissioner appointed by the governor
of this State, a pudge, or clerk of a court of record, or in foreign
countries a minister, consul, vice-consul, or consular agent of the
United States, or a judge of a court of record or a notary public,
A c tio n s . All civil actions are commenced by filing a complaint,
upon which plaintiff m ay, a t any tim e within one year thereafter, have
a summons issued. There is b ut one form of action and th e only
pleadings allowed on th e p a rt of th e plaintifi are : 1. The complaint.
2. The dem urrer to the answer. 3. The dem urrer to th e crossc2n i?lailit ^ 4; T be answer to ike cross-complaint, and on th e part
ot the defendant: 1. The dem urrer to the complaint. 2. The
answer; 3. The cross-complaint. 4. The dem urrer to th e answer
to th e cross-complaint.
A d m in is tr a tio n of E s ta te s . Upon the admission of a will to
probate, letters testam entary are granted by the superior court to the
executor nam ed In the will, unless he be dead or incapable or unwilling
to act, m which case letters testam entary are issued to an adminis­
tra to r w ith the will annexed, appointed by said court. In case of
m testacy, letters of adm inistration are issued to the bona fide resident of th e sta te entitled thereto, in th e following order: l . Relatives
of whole blood entitled to adm inster in preference to those of half
blood. Surviving husband or wife, or some com petent person named
by either. 2. Children. 3. F ather or m other. 4. Brothers. 5. SisI eJ?* It ” Grandchildren. 7. N ext of kin entitled to share in the dis­
tribution of the estate. 8. Public adm inistrator. 9. Creditors.
person legally com petent. W here th e person entitled to
adm inistration is a m inor or incom petent, letters m ust be granted to
his or her guardian, or to any other person entitled to letters of
adm inistration in the discretion of the court. Bonds for faithful
performance of d u ty are required of an adm inistrator and of an
executor unless waived by the will. Notice m ust be given by the
adm inistrator or executor by publication to all the creditors to come
In and prove their claims w ithin ten m onths after its first publication,
when the estate exceeds in value the sum of ten thousand dollars,
and four m onths when it does not. 11. Claims arising on contract
w hether duo. or not. due or contingent, and funeral expenses m ust be
presented withm tim e prescribed by notice to creditors, otherwise
they are forever barred, unless it appears by affidavit of th e creditors
th a t such creditor was outside of the S tate and consequently did
p o t receive notice. Unless claim is approved within the tim e provided for in the notice it is barred, unless the claim ant can prove
to ^th e satisfaction of the court th a t he had no notice by reason of
being o ut of th e State, in which case th e claim may be presented
a t any tim e before a decree of distribution is entered. When a claim
is rejected either by th e executor or adm inistrator or the judge,
the holder m ust bring suit in the appropriate court thereon within
three m onths after the date of its rejection, if it be then due, or within
two m onths after It becomes due, otherwise the claim is forever
barred. No claim can he allowed which is barred by the S tatu te of

BANKING AND COMMERCIAL LAW S—CALIFORNIA

1557

of th e United States (2) bonds of the State. (3) Bonds of any sta te
which has not defaulted in paym ent of either principal or interest
within five years. (4) Bonds of any county,'C ity or town or school,
S 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 th e state, to lim ited am ount. (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 sta te of a population of more than
mands against the estate.
200,000 and an entire bonded indebtedness less than fifteen per cent
A ffid a v its. An affidavit to be used before any court. Judge, or
of the taxable property, where interest or principal has not been
Officer of this S tate m ay be taken before any officer authorized to
defaulted within five years. (6) Bonds of railroads^ organized under
administer oaths. In this S tate every court, every judge or clerk of
the state and operating exclusively therein or of railroads operating
any court, every justice an d every notary public, and every officer or
a t least 500 miles of standard gauge tract, or of any railroad cor­
nerson authorized to tak e testim ony in any action or proceeding, or
poration paym ent of which has been guaranteed, by the preceding
decide upon evidence, has power to adm inister oaths and affirmations.
clauses of railroads; provided, th a t in all cases the net earnings are
An affidavit taken In another S tate of the United States to be used
as required by statute. (7) Bonds of Public U tility corporations,
In this S tate, m ay be tak en before a commissioner appointed by the
incorporated under the laws of the State of California, provided the
governor of this S tate to take affidavits and depositions in such other
properties and earnings, etc., are as required by sta tu te. (S) 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
iudge' or clerk of a court of record having a seal. An affidavit taken ; m arket value. (9) Collateral tru st bonds or notes secured by de­
in a foreign country to be used in this State, m ay 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 tw enty per
United States, or before any judge of a court of record having a seal,
cent in excess of such collateral bonds, provided tire m arket value
in such foreign country.
of the authorized bonds deposited equal such collateral bonds. (10)
Bonds accepted by savings banks under th e laws of New York or
Aliens.
1. All aliens eligible to citizenship m ay take, hold and
M assachusetts. (11) Certificates issued by corporations w ith a
dispose of property, real and personal, within this State.
paid up capital stock of not less than $100,000, secured upon reel
2 All aliens n ot eligible to citizenship m ay acquire and possess land
estate and guaranteed in the maimer required by the Bank Act.
in accordance with th e ten p s of any existing treaty with any foreign
No savings bank m ust loan money except on adequate security on
country of which such alien is a citizen, and not otherwise, and in
real or personal property and such loan m ust not be for longer than
addition m ay lease land for agricultural purposes for three years.
ten years. I t m ust have a paid up capital stock graduated from
3. Any company, association or corporation composed in th e main
$25,000 when located in any place of less than 5,000 population, to
of aliens m ay acquire and possess land in accordance w ith th e terms
$300,000 when the population is in excess of 200,000. Savings
of any existing treaty with any foreign country of which they are
banks organized without capital stock m ust have a reserve fund of
citizens, and n o t otherwise, and in addition m ay lease land for agri­
$1,000,000. The capital stock and surplus of savings banks, m ust
cultural purposes for three years.
.
.
equal ten per cent to and including $2,000,000 deposit liabilities,
4 . When it appears in an y probate proceedings wherein any alien
m ust exceed seven and one half per cent of deposit liabilities from
Is an heir th a t he could tak e 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, th e probate court shall order th e sale of such real property
two and one half per cent from $15,000,000 to $40,000,000. and one
and distribute th e proceeds to such alien.
per cent of deposit liabilities ih 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 m ay, without
forfeiture proceedings and upon final judgm ent the lands shall escheat
procuring letters of adm inistration, withdraw any sum deceased
to the State.
....
,
6. When it appears th a t any ahen or aliens are holding any lease­
m ay have had on deposit in any savings bank if the sum does not
hold interests in violation of th e above provisions the attorney-general
exceed $500.00.
ghn.n likewise in stitu te forfeiture proceedings, and such leasehold
B a n k s. The business of banking m ay be carried on only by
interest or its m onetary value together with the costs of such forfeiture
corporations organized for th at purpose under the Bank Act. The
proceedings shall escheat to th e State.
capital
stock and surplus of commercial banks m ust exceed ten per
No non-resident alien can tak e by succession unless he appear
cent of deposit liabilities. Such corporations are classified as: Com­
and claim within 5 years after d eath of decedent.
mercial, Savings or T rust companies, and, together w ith building and
A rb itra tio n . The submission to arbitration m ust be in writing,
loan associations, are conducted under the supervision and inspection
of a S tate Superintendent of Banks, to whom such banks m ust sub­
and it m ay stipulate th a t it be entered as an order of th e superior
m it a t stated intervals to examination. No person unless organized
court, for which purpose it m ust be filed by the clerk. If the sub­
as a bank under the laws of this sta te m ay hold himself out as en­
mission is n ot m ade an order of the court, It m ay be revoked a t any
gaged in the banking business, or use the word bank, savings or
time before th e aw ard. All the arb itrato rs m ust act, b u t a m ajority
governs. Their aw ard m ust be in writing, signed by a m ajority of
tru st company in connection w ith his business. E very bank m ay
conduct a Commercial and savings departm ent, provided its capital
them, and delivered to th e parties, and when the submission is made
stock, if situated in a locality of less th a n 5,000 population am ounts
by an order of th e court, m ust be filed by the clerk who enters the
to $25,000, or both or either departm ents in conjunction w ith a
same, after th e expiration of five days, in th e judgm ent book, and
tru st departm ent if th e same am ounts to $125,000. if the population
thereupon it has th e effect of a judgm ent. T itle to real property
cannot be arbitrated. Upon application a S tate Board of A rbitra­
of a locality is from 5,000 to 25,000 a capital of $50,000 is required
for a savings and commercial departm ent and $150,000 for both or
tion has jurisdiction over disputes between employer and employee.
either in conjunction with a tru st departm ent: If the population
A rrest. In an action for th e 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, th e defendant m ay be arrested if about to depart
tively, is required; if th e population is over 200,000 a capital of $300,
from the S tate w ith Intent to defraud his creditors, upon order of
000 and $500,000, respectively, is required. -Every bank m ust 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 sta te m ust comply w ith all the requirem ents of the
officer, officer of a corporation, or an attorney, factor, broker, agent,
S tate Bank Act, set ap art to its business conducted here the surplus
or clerk in th e course of his em ploym ent, 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 dependfent 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 bis property or is about to do
savings banks.) W ith some exceptions no commercial bank can lend
so with in ten t to defraud creditors. Bail given upon arrest is liable
more than ten per cent of its capital stock on unsecured loans or
upon judgm ents secured.
twenty-five per cent upon security w orth a t least fifteen per cent
A ssig n m e n ts fo r t h e B e n e fit of C re d ito rs. Assignments for
more than the loan so secured, b u t a commercial bank m ay buy or
the benefit of creditors m ust be w ritten 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 m ade to th e 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
B ills a n d N otes. Negotiable Instrum ents. A negotiable instru­
benefit of creditors are void against any creditor n ot assenting thereto
m ent is a w ritten promise or request for the paym ent of a certain sum
in a num ber of instances; for example, where they give one. debt a
of
money to order or bearer, I t m ust be m ade payable in money
preference over another, and where they tend to coerce any creditor to
only to a person ascertainable a t the tim e th e instrum ent is m ade, and
release or compromise his demand. Assignments m ust contain names
without
any condition not certain of fulfillment. I t m ay be with or
of creditors and th e am ounts.
w ithout date, and with or w ithout the designation of the tim e or place
A tta c h m e n ts m ay be Issued a t the tim e of or any tim e after
of paym ent. I t m ay contain a pledge of collateral security, with
issuing th e summons where am ount sued for exceeds $10.00. All
authority to dispose thereof. Bills of exchange, promissory, notes,
property not exem pt from execution m ay be attached. An attach­
bank notes, checks, bonds, and certificates of deposit, also ware­
ment lien upon real property continues for three years and m ay be
house receipts when so m ade are negotiable instrum ents. Any
extended for two years more. The clerk of the court m ust issue
date m ay be inserted by the m aker of a negotiable instrum ent,
the writ of attachm ent upon receiving an affidavit by or on behalf
whether past, present, or future; and th e instrum ent is not invali­
of the plaintiff showing, (1) T h at the defendant is indebted to the
dated by his death or incapacity a t the tim e of th e nominal date.
plaintiff, specifying th e am ount of such indebtedness over and above
Days of grace are n ot allowed. Acceptance m ust be in writing by
all legal set-offs or counter-claims, upon a contract, express or implied,
the drawee or by an acceptor for honor, and m ay be m ade by the
for the direct paym ent of money, and th a t such contract was made
acceptor w riting his nam e across th e face of the bill w ith or w ithout
or is payable in this state, and th a t th e paym ent of th e same has
other words. The acceptance of a bill of exchange by a separate
not been secured by an y m ortgage or lien upon real or personal prop­
Instrum ent binds the acceptor to one who, upon the faith thereof,
erty, or an y pledge of personal property, or, if originally so secured,
has the bill for value or other good consideration. The holder of a
that such security has, w ithout any act of plaintiff, or the person
bill of exchange, if entitled to an acceptance thereof, m ay tre a t the
to whom th e security was given, become valueless; or (2) T h at the
bill as dishonored if the drawee refuses to w rite across its face an
defendant is a non-resident of th e State, and is indebted to plaintiff,
unqualified acceptance. An unconditional promise in w riting to
specifying th e am ount of such indebtedness over and above all legal
accept a bill of exchange is a sufficient acceptance thereof in favor of
set-offs or counter-claims, upon a contract expressed or implied;
every person who, upon th e faith thereof, has taken th e bill for value.
or (3) T h at plaintiff’s cause of action against defendant is one to
The protest of a notary, under his hand and official seal, is prim a facie
recover a. sum of money as dam ages (specifying the am ount.thereof)
evidence of th e facts contained therein. A bill of exchange, if accepted
arising from an injury to property in this Staté in consequence of
with the consent of th e owner by a person other th a n th e drawee, or
the negligence, fraud or other wrongful act of the defendant, and
an acceptor for honor, becomes, in effect, the prom issory note of such
that the defendant is a non-resident of the Staté; and (4) T hat
person, and all prior parties thereto are exonerated. I f a promissory
tile attachm ent is n o t sought, nor is th e action prosecuted, to -hinder,
note, payable on dem and or a t sight, w ithout Interest, is n o t duly pre­
delay, or defraud any creditor of defendant. Before issuing the writ,
sented for paym ent w ithin six m onths from its date, the indorsers
the clerk m u st, require a w ritten undertaking on th e p a rt of th e plain­
thereof are exonerated, unless such presentation Is excused.
tiff, in a sum n o t less th an $200, or in Justices C ourt of from $50.00
C h a tte l M o rtg a g e s m ay be ma.de on any personal property.
to $300, an d not exceeding th e am ount claimed by plaintiff, with
Including growing crops and fruit, except personal property n ot cap­
sufficient sureties, to th e effect th at, if th e defendant recovers judgm ent,
able of m anual delivery, articles of wearing apparel an d ' personal
the plaintiff will pay all costs th a t m ay be awarded to th e defendant,
adornm ent, and th e stock in trad e of a m erchant. In the absence of
and all damages th a t he m ay sustain by reason^ of th e attachm ent,
delivery and continued change of possession, th e chattel m ortgage
not exceeding th e sum specified in th e undertaking, and th a t if the
will be void as to creditors of the m ortgagor unless acknowledged or
attachm ent is discharged on the ground th a t the plaintiff was not
proved, certified, and recorded, as required in cases of grants of real
entitled thereto, th e facts required in th e above not being existent,
property and accompanied by affidavits of all the parties th a t It is
the plaintiff will pay all damages which thé defendant m ay have
m ade in good faith, and w ithout any design to hinder, delay or defraud
sustained by reason of th e attachm ent, not exceeding th e sum speci­
creditors. Such mortgages m ust be recorded in county it is situated in
fied in th e undertaking.
and if removed to another county a copy of mortgage m ust be re-’
Banks, S av in g s. A savings bank m ay purchase or hold: (1)
corded in county within 30 days or m ortgagor m ust take««possession.
Beal E state, furniture, fixtures, etc., in which its business m ay be
C o lla te ra ls. Are governed by th e law relating to pledges of per­
conducted; (2) P roperty mortgaged or held in tru st on account of
sonal property. A pledge is a deposit of personal property by way of
any money lent in th e course of business. I t shall not purchase
security for th e perform ance of any act. Delivery of th e thing
personal property except (1) bonds or interest bearing obligations
Timitations Claims against the estate are Daid in the following
order' 1 Funeral expenses. 2. The expenses of the last sickness.


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1558

BANKING AND COMMERCIAL LAW S—CALIFORNIA

pledged is essential to the validity of the bailm ent. W hen th e per­
form ance of the act for which the pledge is given is due in whole or
In p art, th e pledgee m ay collect w hat is due to him by the sale of the
property pledged. B ut before the property can be sold the pledgee
m ust dem and performance thereof from the debtor. If he can be
found, and m ust give actual notice to the pledgor of the tim e and
place a t which the property pledged will be sold, a t such a reasonable
tim e before th e sale as will enable the pledgor to attend, b ut notice
of th e sale m ay be waived by the pledgor a t any tim e. The sale
m ust be by public auction and m ust be for the highest obtainable
price. After the sale the pledgee m ay deduct from the proceeds the
am ount due and the necessary expenses of sale and collection, and
m ust pay th e surplus to the pledgor. The pledgee, or a pledge­
holder, m ay purchase the property pledged when the same is sold
a t public auction. A pledgee can not sell any evidence of debt
(collateral) pledged to him, except th e obligations of governments,
states, or corporations; b u t he m ay collect the same when due.
C o n tra c ts . Certain contracts are invalid unless th e same or
some note or m em orandum thereof is in writing. (See S tatute of
Frauds.) A e x t r a c t for personal services cannot be enforced for
over two years.

C onveyances. An estate In real property, other than an estate at
#111, or for a term not exceeding one year, can be transferred only by
operation of law, or by an instrument in writing, subscribed by the
party disposing of the same, or by his agent thereunto authorized in
writing. Leases of agricultural land for a longer period than 10
years and 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 of the grant th at a
lesser estate was intended. A grant of real property may be made
in the following form: ‘‘I, A. B., grant to O. 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 a t the time of the execution of the conveyance free from
Incumbrances, done, made, or suffered by the grantor. Subsequently
acquired title passes by operation of law to the grantee, or his suc­
cessors. Instruments entitled to be recorded must be recorded by
the county recorder 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.
C o rp o ra tio n s. P rivate corporations m ay be formed by th e volun­
ta ry association of any three or more persons, in th e m anner prescribed
by sta tu te not to exceed 50 years. A m ajority of such persons m ust
be residents of this State. P rivate corporations m ay be formed for
any purpose for which individuals m ay lawfully associate themselves.
T he num ber of directors of corporations for profit, except those
m entioned as excepted, m ay be increased or diminished, by a m ajor­
ity of th e stockholders of th e corporation to any num ber, n ot less
th an three, who m ust be members of th e corporation. A copy of the
articles of incorporation, certified by th e secretary of State, m ust be
filed w ith th e county- clerk of every county where th e corporation
purchases, acquires or locates property, within sixty days after
such purchase or location. Upon filing th e articles of incorporation
in th e office of th e county clerk o f th e county in wnich the principal
business of th e com pany is to be transacted, a copy thereof, certi­
fied by th e county clerk, with the secretary of State, the secretary of
S tate m ust issue to th e corporation over the great seal of th e S tate
a certificate th a t a copy of the articles containing the required state­
m ent of facts has been filed in his office, and thereupon the persons
signing th e articles, and their associates and successors, shall be a
body politic and corporate by the nam e 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, m ust be received in all the
courts, and other places as prim a facie evidence of the facts therein
stated. (See Foreign Corporations.) All stocks is assessable for the
purpose of paying debts and meeting expenses b u t no single assess­
m ent m ust exceed 10%. The franchise of ail corporations as dis­
tin ct from its tangible property is subject to taxation.
E ach 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 am ount of stock or shares owned by
him bears to th e whole of th e subscribed capital stock or shares of
th e corporation, and for a like proportion only of each debt or claim
against th e corporation, b u t such liability is barred within 3 years
after th e obligation is incurred. Any creditor of th e corporation
m ay institu te joint o t several actions against an y of its stockholders
for th e proportion of this claim, payable by each, and in such action
th e court m ust ascertain the proportion of th e claim or debt for which
each defendant is liable, and a several judgm ent m ust be rendered
against each in conformity therewith. I f any stockholder pays
his proportion of any debt due from th e corporation incurred while
he was such stockholder, he is relieved from any further personal
liabilities for such debt; and if an action has been brought against
him for such debt, it shall be dismissed as to him upon his paying
th e costs, or suck proportion thereof as m ay be properly chargeable
against him. The term “ stockholder” extends to every equitable
' owner of stock, although th e same appears on the books in the nam e
of another, and also to every person who has advanced the install­
m ents or purchase money of, stock in the nam e of a minor, so long as
the la tte r remains a m inor; and also to every guardian or other
trustee who voluntarily invests any tru st 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 n ot m ake the holder thereof
a stockholder, except in the case above mentioned, so as to charge
him with an y proportion of the debts or liabilities of the corporation;
b u t th e pledgor, or person, or estate represented is to be deemed the
stockholder as respects such liabilities. In corporations having no
capital stock, each m em ber is individually and personally liable for bis
proportion of Its debts and liabilities, and sim ilar actions m ay be
brought against him, either alone or jointly w ith other members, to
enforce such liabilities as by this section m ay be brought against one
o r more stockholders, a n a sim ilar judgm ents m ay be rendered.
C o u rts . Term s 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 am ount
to $300, and the jurisdiction of a justice of the peace I n all Cases
»where monev judgm ent 1s recoverable is limited to $300. 2. In
actions for damages for injury to the person, or for taking, detaining,
o r Injuring personal p ro p erty ,'o r for injury to real property, where
Bo Issue, is raised by the verified answer of. the defendant involving


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the title to or possession of the same, if the damages claimed do no*
am ount to $300. 3. In actions to recover the possession of Dersnrud
property, if the value of such property does hot am ount to $300
4. In actions for a fine, penalty, or forfeiture not amounting to
$300 given by sta tu te, or the ordinance of an incorporated citv nr
town, where tfo issue is raised by the answer involving the leealltv
of any tax. im post, assessment, toll, or municipal fine 5 in
actions upon bonds or undertakings conditioned for the payment nt
money, if the sum claimed does n ot am ount to $300, though th«
penalty m ay exceed th a t sum. 6. To take and enter judgment for
the recovery of money on the confession of a defendant, when the
am ount confessed, exclusive of interest, does n ot am ount to $300
7. Also concurrent jurisdiction with the superior courts, within their
respective townships in actions of forcible entry and detainer where
the rental value of the property entered upon or unlawfully detained
does not exceed $25 per m onth, and the whole am ount of damages
claimed does n ot exceed $200. Also in actions to enforce and fore­
close liens on personal property, where neither the am ount of the
liens nor the value of the property am ounts to $300.
Superior Court. The jurisdiction of the superior court is of two
kinds: i. 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 estim ation; in all cases at
law which involve th e title or possession of real property, or the
legality of any tax , etc., and in all other cases In which the demand
exclusive of interest or the value of th e property in controversy’
am ounts to $300; of actions of forcible entry and detainer, of pro­
ceedings in Insolvency: of actions to prevent or abate a nuisance- of
ail m atters of probate, of divorce and for annullm ent of marriageand 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 w arranto, 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 m ay be issued and
served on legal holidays and non-judicial days. The superior courts
have appellate jurisdiction in cases arising in justices’ and other
Inferior courts in their respective counties provided the appeal be
taken within th irty days of the ludgm ent.
D istrict Courts of Appeal. The S tate is divided into three appellate
districts, each of which has a court of appeals w ith three Justices.
These courts have appellate and original jurisdiction. The general
line of dem arcation between the suprem e court and these courts le
the am ount 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 a t law in which the demand exclusive
of Interest or the Value of the property in controversy amounts to
$300 and does n ot am ount 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 m andam us, certiorari and prohibition,
usurpation of office, contesting elections and em inent domain, and
In such other special proceedings as m ay 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
Indictm ent or inform ation to a court of record, excepting criminal
cases where judgm ent of death has been rendered. Said courts also
have appellate jurisdiction In all cases, m atters 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
mandam us, certiorari, prohibition,.and habeas corpus; it shall also
have power to issue all other writs necessary and proper for the
complete exercise of its appellate jurisdiction. The supreme court
has appellate jurisdiction In all cases in equity, except such as arise
In the justices’ courts; also in all cases a t law which Involve the title
or possession of real estate or the legality ot any tax, impost, assess­
m ent, toll or m unicipal fine', or in which th e dem and exclusive of
Interest or the value of the property In controversy amounts to
$2,000; also in all such probate m atters as m ay be provided by law;
also on questions of law alone In all crim inal cases where the judgment
of death has been rendered; the said court also has appellate juris­
diction In all cases, m atters and proceedings pending before a-dis­
trict court of appeal which shall be ordered by th e supreme court to
be transferred to itself for hearing and decision.
D e p o s itio n s . The deposition of a witness out of this State may
be taken upon a commission issued from th e court under, the seal of the
eourt,«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 th e clerk of th e superior
court of the c o u n ty . to the effect th a t the person issuing the same
was an acting justice of th e peace a t the date of th e commission. If
issued to any place within the United States, it m ay be directed to a
person agreed upon by the parties, or if they do not agree, to any
notary public, judge or justice of th e peace or commissioner selected
by th e court, or judge, or justice issuing it. I f issued to any country
out of th e U nited States, it m ay be directed to a minister, ambassador,
consul, vice-consul, or consular agent of the U nited States in
such country, or to any person agreed upon by th e parties. The
commission m ust authorize th e commissioner to adm inister an oath
to the witness. The testim ony of a witness out of th e State may be
taken by deposition in an action, a t any tim e after th e service of the
summons or th e appearance 6f th e defendant; in a special proceeding,
a t any tim e after a question of fact has arisen therein. Depositions
m ust be taken in th e form of question and answer. The words of
the witness m ust be w ritten down, in th e presence of th e witness,
by th e officer taking th e deposition or by some indifferent person
appointed by him. I t m ay be taken down In. short hand in which
case it m ust be transcribed to long hand by th e person who took it
down. When completed, it m ust 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 w ritten a t th e bottom of the deposition,
and m ust then be subscribed by the witness. Corrections must be
initialed by officer before whom deposition is taken. I f th e parties
agree in writing to any other mode, th e mode so agreed upon must
be followed.
Depositions in this S tate. The testim ony of the witness in this
S tate m ay be taken by deposition In an action a t any tim e 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
enum erated cases.
Depositions for Use out of the S tate. Any p arty to an action or
special proceeding in a court or before a judge of a sister state, may
obtain the testim ony of a witness residing in this State, sto be used in
such action or proceeding, in the cases m entioned following: If a
commission to take such testim ony has been issued from the court;
or a judge hereof, before which such action or proceeding is pend­
ing, on producing the commission to a judge of the superior
court with an affidavit satisfactory to him of the m ateriality of the
testim ony, he m ay issue a subpoena to the witness, requiring him to
appear and testify before the commissioner nam ed in the commis­
sion, a t a specified tim e and place. If a commission has not been
issued and it appear to a judge of the superior court, or a justice of
the peace, by affidavit satisfactory to him : 1. T h at the testimony
of th e witness is m aterial to either party. 2. T hat a commission to

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1559

any m aster, officer, op seam an of any steam er or other vessel. 13.
take testim ony oi such witness has n ot been Issued. 3. T hat
All fire engines, hook and ladders, w ith carts, trucks, carriages, hose,
according to th e law oi the S tate where the action ot -pedal proceeding
buckets, implements, and apparatus thereunto appertaining; and
la pending, th e deposition of a witness taken under such circumall furniture and uniforms of any1 fire com pany or departm ent or­
stances, and before such Judge or justice, will be received in the action
ganized under any law of this State. 14. All arm s, uniforms and
or proceeding, he m ust issue a subpoena requiring the witness to
accoutrem ents required by law to be kept by any person, and also
appear and testify before him a t a specified tim e and place. U pon
one gun to be selected by th e debtor. 15. All court houses, jails,
the appearance of the witness, the judge or justice m ust cause his
and town, county, and S tate buildings; all public buildings, grounds,
testimony ttf be taken in writing, and m ust certify and transm it the
places, etc. 16. AJ1 m aterial purchased for use in the construction,
same to th e court or judge before whom the action or proceeding Is
alteration, etc., of an y building, mining claim, etc., not exceeding the
pending, in such m anner as the law of th a t S tate requires.
value of $1,000. 17. All m achinery, tools, and Implements neces­
D e sc e n t a n d D is tr ib u tio n of P ro p e rty . Property, both real
sary in and for boring, sinking, putting down, and constructing sur­
and personal, of an Intestate passes to his heirs. A surviving wife
face or artesian wells', also th e engines necessary for operating such
succeeds to one-half of the com m unity property, l. e., all property
machinery, implements, tools, etc.; also all trucks necessary for the
acquired by husband or wife during the marriage, which does not
transportation of such machinery, tools, implements, engines, etc., to
Include property acquired by either husband or wife by gift, bequest,
the value of $1,000. 18. All moneys, benefits, privileges, or im­
devise or descent, which is separate property. Dower interest does
munities accruing, or in any m anner growing out o f any life insurance
not exist. The separate estate is distributed a s 1follows: If the
on the life of the debtor, if th e annual premiums paid do n ot exceed
decedent leaves a surviving husband or wife and only one child, or
$500. 19. Shares of stock in any building and loan association to
the lawful Issue of one child, in equal shares, to the surviving husband
the value of $1,000. 20. Pensions from th e United S tates Govern­
or wife and «child or Issue of such child. If a surviving husband or
ment. No article, however, or species of property m entioned in
wife and more' th an one child living, or one child living and the lawful
this section, is exempt from execution issued upon a judgm ent re­
issue of one or more deceased children, one-third to the surviving
covered for Its price or upon, a judgm ent of foreclosure of a m ortgage
husband or wife, and the rem ainder In equal shares to the children
or .other lien thereon. (For Hom estead Exem ptions, see Homestead.)
and to the lawful issue of any deceased child by right of representation.
F o re ig n C o rp o ra tio n s. Every foreign corporation doing or
But if there be no child living, the remainder goes to all the lineal
about to do business In this S tate m ust file a certified copy of Its
descendants, and if they are In the same degree of kindred to the
articles
of Incorporation, or of a legislative act creating it, with the
decedent they share equally, otherwise by right or representation.
Secretary of State, and a certified copy thereof duly certified by the
If the decedent leaves no surviving husband or wife, the whole estate
Secretary
of this S tate m ust be filed with the County Clerk of the
goes ¡to: the Issue—th e Issue of children taking by right of represen­
County where its principal place of business is located, and also
tation. If there is no Issue the estate goes one-half to the surviving
where it owns property. Every foreign, corporation m ust file in
husband or wife and the other half to the father and m other In equal
the office of th e Secretary of S tate w ith such certified copy,- a desig­
shares, or, if one be dead, to the survivor; if there be no father or
nation of some person residing within the S tate upon whom process,
mother, then th eir one-half goes In equal shares to the brothers and
issued by authority of or under any law of this State, m ay be served;
sisters or to their representatives. If there Is no issue, or husband or
and any foreign corporation failing to comply with , this provision
wife, th e estate goes to the father and mother, or the survivor, or. If
can neither m aintain nor defend any action in the courts of this
both be dead, then In equal shares to the brothers and sisters, and
S tate, or acquire or convey any legal title to real property and is
to the children of any deceased brother or sister by right of repre­
subject in addition to a fine of $500. (See Corporations.)
sentation. If th e decedent leaves a surviving husband or wife, and
P ra u d . (For Fraudulent Debtors, see Arrest.) Any contract
neither issue, father, m other, brother, nor sister, the whole estate
obtained through fraud is voidable. Consent Is deemed to have
goes to the surviving husband or wife. If the decedent leaves neither
Issue, husband, wife; father, m other, brother, nor sister, the estate
been obtained through fraud only when it would n ot have been given
must go to th e next of kin in equal degree. Illegitim ate children
had such cause not existed. Actual fraud consists in the suggestion
inherit, from m other, also froiia father if recognized in writing b ut
as a fact of th a t which is not true, the positive assertion of th a t which
can only inherit directly and not by representation. These are the
is not true in a m anner not w arranted by the Inform ation of the person
principal provisions of th e law of succession. Tenancy b y the cour­
making It though he believes It to be true, the suppression of th a t
which is true by one having knowledge of It, and promises m ade with-?
tesy is not known to our law. I f the person dies testate, all property
out any Intention of performing, or any other act fitted to deceive.
passes as directed by th e will.
Constructive fraud consists of any breach of duty, which w ithout an
E x ecu tio n s. M ay issue any tim e within 5 years from entry of
actual fraudulent Intent, gains an advantage of the person in fault
judgm ent and after lapse of 5 years the judgm ent m ay be enforced
by misleading another to his prejudice. Actual fraud is always a
or carried into execution by leave of court upon motion, or by judg­
question of fact.
ment for th a t purpose, founded upon supplemental proceedings.
G a r n is h m e n t. Upon receiving instruction In writing from the
No right of stay exists except by order of the court in its discretion.
plaintiff or his attorney th a t any person has in bis possession, or under
Execution m ay issue against th e property of a judgm ent debtor
Els control, any credits or other personal property belonging to the
after his death, only if th e judgm ent be for recovery of real or per­
defendant or is owing any debt to the defendant, the sheriff m ust
sonal property, or th e enforcement of liens thereon. Real property
serve upon such person a copy of the w rit and à notice th a t .such,
may be redeemed within one year, personal property not a t all.
credits, or other property or debts, as the case m ay be, are attached
E x e m p tio n s . The following property Is exem pt from execution;
In pursuance of such writ. Ail persons having any such property
1. Chairs, tables, desks, and books, to the value of J200. 2. Neces­
a t the tim e of serving of such writ, unless it Is delivered up or trans­
sary household, table and kitchen furniture belonging to the Judgment
ferred or paid to the sheriff, shall be liable to the am ount of such
debtor, including one sewing machine, stoves, stove-pipes and furni­
credits, property, or debts, until the attachm ent be discharged, or
ture, wearing apparel, beds, bedding and bedstead, hanging pictures,
any Judgm ent by him recovered be satisfied.
oil paintings an a drawings draw n or painted by any member of the
H o m e s te a d . The hom estead consists in the Interest of the
family, and family portraits, and their necessary frames, provisions
claim ant, divided or undivided, In th e dwelling house in which the
and fuel actually provided for individual or family use sufficient
claim ant resides, and in the land on which th e same is situated,
for three m onths, and three cows and their sucking calves, four hogs,
with their sucking pigs, and food for such cows
and hogsfor one selected, If the claim ant be m arried, from com m unity property, or
the separate property of the husband, or, w ith the consent of the
month, one piano, one shotgun,
and one rifle.3. The farming
wife from her separate property. W hen th e claim ant is not m arried,
utensils or implem ents of husbandry not exceeding in value th e sum
but Is the head of a fam ily, th e hom estead m ay be selected from any
of $1,000; also two oxen or two horses, or two mules, and their harness;
of his or her separate oroperty. The hom estead can n ot be selected
one cart or buggy and two wagons, and food for such oxen, horses,
from the separate property of the wife w ithout her consent, shown
or mules for one m onth; also all seed, grain, or vegetables, actually
by her m aking or joining the declaration of hom estead. The home­
provided, reserved'or on hand for the purpose of planting or sowing
stead is exem pt from execution or forced sale, except in satisfaction
a t any tim e within th e ensuing six m onths, not exceeding in value
of Judgments obtained; 1. Before the declaration of homestead
the sum of $200, and seventy-five bee hives, and one horse and ve­
was filed for record, and which constitutes liens upon the premises^
hicle belonging to any person who is maimed or crippled, and the
same is necessary in his business.
4- The tools
or implements of2. On debts secured by m echanics' contractors’. suD-contractors ,
artisans’, architects’, builders’, laborers’ of every class, m aterialm en’s
mechanic or artisan necessary to carry on his trade: the notarial
or vendors’ liens upon the premises. 3. On debts secured by
seal, records, and office furniture of a notary public; the instrum ents
mortgages on the premises, executed and acknowledged by the hus­
and chest of a surgeon, physician, surveyor, or dentist, necessary to
band and wife or by an unm arried claim ant. 4. On debts secured
the exercise of their profession, with their professional libraries and
by m ortgages on the premises, executed and recorded before the
necessary office furniture; the professional libraries of attorneys,
declaration of hom estead was filed for record. In cases not enum­
judges, ministers of th e gospel, editors, school teachers and music
erated above. In which, after a Judgment has been docketed against
teachers and their necessary office furniture, including one safe and
the hom estead claim ant, and an execution for its enforcem ent levied
one typewriter, also the musical instrum ents of music teachers ac­
on the homestead, it m ay be shown by an appraisem ent applied for
tually used by them in giving instructions; and all the indexes, ab­
to, and ordered by, the court, after proper proceedings, th a t the homestracts, books, papers, maps, and office furniture of a searcher of
«tead exceeds in value the am ount of hom estead exem ption. Then
records necessary to be used in his profession; also the typew riters
steps m ay be taken, if it can be done w ithout m aterial injury to the
or other mechanical contrivances employed for writing in type ac­
land, to divide the property and reach the excess. The homestead
tually used by the owner thereof for making his living; also one
of a m arried person can n ot be conveyed or encumbered unless the
bicycle when th e sam e is used by its owner for the purpose of carrying
instrum ent by which it Is conveyed or encumbered is executed and
on his regular business, or when the sam e is used for the purpose
acknowledged by both husband and wife. Hom esteads m ay be
of transporting th e owner to and from his place of business. 5. The
selected and claimed: l. If not exceeding 55.000 in value; by any
cabin or dwelling of a minor n ot exceeding in value the sum of $500;
head of a family 2. Tf-not exceeding 51.000 In value, by another
also his sluices, pipes, hose, windlass, derrick, cars, pumps, tools,
person upon death of either spouse, if hom estead is selected from
implements, and appliances necessary for carrying on any mining
com m unity property or from separate property of spouse joining
operations, not exceeding in value th e aggregate sum of $500; and
therein, title thereto vests in survivor otherwise to th e heirs or de­
two horses, mules, or oxen, w ith their harness, and food for same
visees of th e person whose property was selected.
tor one m onth, wnen necessary to oe used in any whim, windlass,
derrick, car, pump, or hoisting gear, and also his mining claim, actu­
H u s b a n d a n d W ife. The husband is the head oi the fam ily.
ally worked by him. not exceeding In value the sum oi 5 1 .0 0 0 . 8.
He m ay choose any reasonable place or mode of living, and the wife
Two horses, two oxen, or two mules, and their harness, and one cart
m
ust
conform thereto. In other respects their Interests are separate.
or wagon, one dray or truck, one coupe, one hack or carriage tor one
Neither husband nor wife has any Interest in the separate property
or two horses, by the use of which a cartm an, truckm an, huckster,
of the other, and either m ay enter into any engagem ent with the
peddler, hackm an, team ster, or other laborer habitually earns his
other or with any other person, respecting property, which either
living, and one horse with vehicle and harness, or other equipment»
might if unm arried.
All property of either, owned by him or her
used by a physician, surgeon, constable, or m inister of the gospel In
before marriage, and th a t acquired afterw ard by gift, bequest, devise
the legitim ate practice of his profession or business, with food for
or descent, Is the separate property of such person. All other prop­
same for one m onth. 7. One fishing boat and net, not exceeding
erty acquired after m arriage by either husband or wife or both, is
the total value $500, th e property of any fisherman by the lawful
com m unity property, b u t whenever any property is conveyed to a
use of which he earns a livelihood. 8. Poultry, not exceeding m
m arried woman by an in stru m en t In Writing, th e presum ption Is th a t
value $75. 9. Seamen’s and seagoing fishermen’s wages and earn­
the title is thereby vested in her as her separate property. The
ings not exceeding $300. 10. The earnings, of the judgm ent debtor
husband has the m anagem ent and control of th e com m unity prop­
for his personal services rendered a t any tim e within th irty days
erty, with absolute power of disposal other th an testam entary, pro­
next preceding th e levy of execution or attachm ent, where it appears
vided th a t he cannot m ake a gift of the same or convey the same
by the debtor’s affidavit or otherwise, th a t such earnings are neces­
w ithout valuable consideration, unless the wife consents in writing.
sary for th e use of his family residing in this S tate supported in whole
The
com m unity property is n ot liable for the contracts of the wife
or in p art by his. labor; b u t where debts are incurred by any such
m ade after m arriage, unless secured by a pledge or m ortgage thereof
person, or his wife or fam ily for the common necessaries of life, or
executed by th e husband. T he husband is n o t liable for dam ages or
nave been incurred a t a tim e when th e debtor had no fam ily residing
to rts com m itted by wife except in a case where he would be jointly
in this State, supported in whole or on p art by his labor, th e oneliable w ith her if th e m arriage did n ot exist. T he separate property
half of such earnings above m entioned are nevertheless subject to
of the husband is n ot liable for th e debts of th e wife contracted before
execution, garnishm ent, or attachm ent to satisfy debts so incurred.
m arriage, and the separate property of th e wife is n ot liable for the
11. T he shares held by a member of a homestead association duly
debts of her husband, b u t is liable for her own debts contracted .before
Incorporated, not exceeding in value $1,000, if th e person holding
or after marriage. A husband and wife m ay hold p roperty a s joint
th e shares is not the owner of a homestead under th e laws of this
tenants, tenants by entreaties, tenants in common, or as Community
State. 12. All th e nautical instrum ents and wearing apparel of


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1560

BANKING AND COMMERCIAL LAWS—CALIFORNIA

property upon death of wife entire com m unity property goes to
husband, whereas on death of husband wife gets one half of com­
m unity.
I n t e r e s t . The legal rate of Interest is 7 per cent and Is due upon
judgm ents after rendition and upon other obligations unless there
is an express contract in writing fixing a different rate. The parties
m ay agree, on a higher rate of Interest and on the compounding of
same, Dut personal property brokers m ay charge n ot to exceed 2
(two) per cent per m onth.

Ju d g m e n ts . (See Actions.) Upon filing the Judgment roll,
which is a record of the proceedings in the case, it must be docketed
by the clerk, whereupon 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 a t that time, or which he may thereafter
acquire. This lien continues for five years, unless the enforcement
°f 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 attachad and in the custody of the sheriff.
L ie n s. Mechanics, m aterial-m en, contractors, sub-contractors,
artisans, architects, machinists, builders, miners, team sters, dray­
men and all persons and laborers of every class performing labor
upon or furnishing m aterial to be used in or furnishing appliances
team s 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 th e property upon which they have worked or fur­
nished m aterial, and any person performing labor in a mining ciajm
has a lien upon th e same, and th e works owned and used by th e owners
for reducing the ores from such mining claim, for th e work or labor
done. The common carrier has a lien upon the luggage of a passenger
for th e paym ent of his fare. One who sells real property has a ven­
dor s lien thereon. Im provers of personal property, depositaries for
hire, veterinary surgeons, livery stable keepers and persons pasturing
horses or stock, have a special Iieri, 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 liens independent of possession. Owners of
anim als used for propagating purposes have a lien for th e agreed
price upon th e offspring. Loggers rendering services upon logs,
bolts and other tim ber have a lien thereon for th e am ount due for
their personal services.
E very person perform ing work or labor in, witn, 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 th e value of his services, for ten days after ceasing work or labor,
provided,.within th a t tim e, an action is brought to recover the am ount
of th e claim, persons repairing or altering any personal property have
a hen for th e reasonable value of such service.

L im ita tio n s. If real estate is held adversely for five years, such
adverse possession ripens into title if claimant pays taxes for 5 years
except against infants and persons under disability. The periods
prescribed for the commencement of actions other than for the re­
covery of real property, are as follows: Within five years- (I)

*An action upon a judgm ent or decree of any court of the United
States, or of any S tate within th e United States. (2) An action
for mesne profits of real property. W ithin four years: (1) An
action upon any contract, obligation or liability founded upon an
Instrum ent in writing, executed in this State. (1) An action to
recover a balance due upon a m utual open an d current count or
upon an open book acoount. W ithin three years: <l) An action
up o n a liability created by sta tu te, other th n a penalty or forfeiture
(2) An action for trespass upon real property. (3) An action for
taking, detaining or Injuring any goads or chattels, including actions
for th e specific recovery of personal property. (4) An action for
relief on th e ground of fraud or m istake, the cause of action in such
case n ot to be deemed to have accrued until the discovery by the
aggrieved p arty of the facts constituting fraud or m istake; W ithin
two years: (1) An action upon a contract, obligation or liability
n ot founded upon an instrum ent of writing, or founded upon an
1 instrum ent of writing executed o ut of th e S tate. (2) An action pn a
debt, liability or obligation evidenced by an abstract, guarantee or
certificate of title; and such action shall n ot be deemed to have accrued
until th e discovery of th e loss or dam age. (3) An action against
a sheriff, coroner, or constable, upon a liability incurred by th e doing
of an act in his official capacity, and in virtue of his office, or by the
omission of an official d uty, including th e non-paym ent of money
collected upon an execution; b u t th is subdivision does n ot apply
to an action for an escape. W ithin one year: (1) An action upon
a sta tu te for a penalty or forfeiture, when th e action is given to an
individual or to an individual and th e State, except when th e sta tu te
imposing it prescribes a different lim itation. (2) An action upon
a sta tu te, or upon an undertaking in a criminal action, for a forfeiture
or penalty to th e people of this State. (3) An action for libel, slander
assault, b attery, false im prisonm ent, or seduction, or for injury to
or for th e d eath of one caused by the wrongful a c t or neglect of another
or b y a depositor against a bank for the paym ent of a forged or raised
check. (4) An action against a sheriff, or other officer, for th e escape
of a prisoner arrested or imprisoned on civil process. (5) An action
against a >municipal corporation for dam ages or injuries to property
caused by a mob or riot. W ithin six m onths: (1) An action to
recover property seized by tax collector. (2) T o recover corpora­
tion stock sold for delinquent assessm ent. T o actions brought to
recover money or other property deposited w ith an y bank, banker,
tru s t com pany, or savings and loan society, there is no lim itation.

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, a t the time the action accrued
either a minor, insane, imprisoned for a term less than life, or a mar­
ried woman, ajsd 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 n o t take the case out of
the statute of limitations. Where: a cause of action has arisen in
another State, and would be barred by the statute of limitations of
th at State, an action cannot be maintained here. There is no limita­
tion upon actions to recover money or property-with banks or trust
companies. (See Accounts.)

M a rrie d W o m en . W hen a m arried woman is a p arty to an
action her husband m ust be joined except: (l) When th e action
concerns her separate property including to rts for personal injuries
hom estead property and actions between herself and husband or
when she is living separate and ap art from her husband by reason
of his desertion or by an agreem ent in writing. A m arried woman
m ay become a sole trad er by th e judgm ent of th e superior court of
th e county in which she has resided for six m onths next preceding
th e application. T he husband of th e sole trader is n ot liable for
any debts contracted by her in th e course of her sole tra d e r’s business
unless contracted upon his w ritten consent. A m arried woman m ay
convey w ithout consent of her husband, and is not liable for the


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debts of her husband, b ut is liable for her own debts contracted
before or after her . marriage. She m ay contract as a femme sole
so as to bind her separate property. The wife m ay m ake a will A?
her separate property. The earnings of the wife are not liable for
the debts of her husband.
Ior
M e c h a n ic s ’ L ie n s. (See Liens.)
M o rtg a g e s . Any interest in real property which is capable of beinv
transferred m ay be mortgaged. A m ortgage can be created, renewed
or extended only by writing executed w ith the form alities required In
the case of a grant of real property. E very transfer of an interest in
real property, other th an in tru st, m ade only as the security for the
performance of any act, is to be deemed a mortgage, and th e fact that
the transfer was made subject to defeasance on a condition m av fo r
the purpose of showing such transfer to be a mortgage, be proved
(except as against the subsequent purchaser or encum brancer for
value and w ithout notice) although the fact does not appear by the
term s of the instrum ent. A m ortgage is a lien upon everything
th a t passes by a grant of the property. A m ortgage does n ot entitle
the m ortgagee to the possession of the property. The assignm ent of *
debt secured by a mortgage carries with it the securité. When a
mortgage Is satisfied or the m ortgage indebtedness paid, the mort­
gagee m ust satisfy th e m ortgage of record under penalty
A
m ortgagee m ay foreclose th e right of redem ption of the mortgagee
unless expressly stipulated th e m ortgage is not a personal obligation
on p art of mortgagor.
6 *uu
N o tes a n d B ills o f E x c h a n g e . (See Bills and Notes.)
P led g e. (See Collaterals.)
P ow ers of A tto r n e y . An attorney in fact m ay be appointed for
any purpose for which an agency can lawfully be created. Powers of
attorney can only be conferred by an instrum ent in writing subscribed
by the principal which m ust particularly specify the powers con­
ferred. if the instrum ent contains a power to convey or execute
Instrum ents affecting real property. It m ust be duly acknowledged
and m ust be recorded in th e county w ithin which the real property
to be conveyed or affected is situate. No such instrum ent which has
been so recorded is revoked by any a ct of the p arty by whom It was
executed, unless the instrum ent containing such revocation is also
acknowledged or proved, certified, and recorded In the same office
in which th e Instrum ent containing the power was recorded. When
an attorney in fact executes an instrum ent transferring an estate
In real property, he m ust subscribe the nam e of his principal to it
and his own nam e as atto rn ey in fact.
P ro b a te L aw . . (See A dm inistration or E states, Claims against
E states of deceased persons, Descent and Distribution.) The superior
court has jurisdiction of proceedings In: probate, and such proceedings
m ust be instituted (1) In th e county in which th e decedent was a
resident; (2) in the county in which he m ay have died, leaving
estate therein, he n ot being a resident of the S tate; (3) in the
county in which any p a rt of the estate m ay be, if the decedent died
2* ,Wr
3»ud was n ot a resident. (4) In any county in
. which any p a rt of th e estate m ay be, or th e decedent n o t being a
resident of th e S tate nor leaving an estate in the county of death.
(5) In other cases where application is first made, any person in­
terested m ay petition for probate of a will or m ay contest such probate within one year. An inventory and appraisem ent is required
of the executor or adm inistrator within three m onths. Upon the
return of the inventory the court m ay set ap a rt for use of th e sur­
viving husband or wife,, or of the m inor children, all th e property
exempt from execution including any hom estead selected, providing
the same was selected from th e common property or from, th e sep­
arate property of the person selecting or joining in th e selection of
th e same. If none has been selected, th e court m ust select, desig­
nate and set ap art and cause to be recorded a hom estead for the
use of the surviving husband or wife, or of the m inor children, or
if there be no surviving husband or wife, then for th e use of th e minor
children out of th e common property, or if there be no common
property, then out of th e real estate belonging to th e decedent. Properfcy so set ap art is n o t subject to further adm inistration. I f upon
the return of the inventory it appears th a t the value of th e whole
estate does not exceed $1,500, th e court m ay set ap art the whole
of the estate for the use and support of the fam ily of th e deceased.
P r o te s t. (See Bills and Notes.)
R e p le v in . There is no action of replevin In this S tate, b u t the
claIm and delivery substantially takes its place. The
plaintiff in an action to recover the possession of personal property
m ay a t the tim e of Issuing the summons, or a t any tim e before answer,
claim the delivery of such property. An affidavit m ust be m ade by
the plaintiff or by some one in his behalf showing th a t th e plaintiff
is th e owner of the property, or entitled to its possession, th a t the
,1® wrongfully detained by the defendant, the alleged cause
of detention thereof, and th a t it has n ot been taken for a tax , assessm?n t .
“ P?*,or seized under an execution or attachm ent, or if so
seized th a t it is exem pt; also th e actual value of the property, i Plaintlfl m ust also give a bond in double the value of th e property. The
defendant m ay give to th e sheriff a w ritten undertaking in double
the value of the property, and retain the same, b u t in case he fails
so to do th e property is delivered to the plaintiff. T hird parties
m ay upon affidavit of ownership, claim such property and secure
its release under bonds. The judgm ent in such action is in the
alternative for a return of the property or for its value in case a de­
livery can n ot be had.
S ale of S to c k S h a re s. P erm it m ust be obtained from S tate Cor­
poration Commissioner.
S t a t u t e o f F ra u d s . A will m ust be in writing, except a nuncupatave will. (See Wills.) An agreem ent n ot to be performed
within a year mom m aking it m ust be in writing ; also a special prom­
ise to answer for th e debt, defraud, or miscarriage of another; also
agreem ents m ade in consideration of m arriage other, th an a mutual
promise to m arry. An agreem ent for th e sale of goods and chattels
or things m action a t a price not less th an $200, unless th e buyer
accept and receive p a rt of the sam e or any p a rt of th e purchase
money. N o estate in land will pass other th an leases n ot to exceed
one year, unless in writing. An agreem ent authorizihg or employing
an agent or broker to purchase or sell real estate for compensation
or for a commission. An agreem ent by its term s n ot to be performed
in th e lifetime of th e promise or to make, devise or bequeath by will.
N o evidence is admissable to charge a person upon representations
as to the credit of another, unless th e representations be in writing.
Uowever where promisor has received property to apply piirana.ni;
to promise or a discharge of an obligation in consideration of the
promise, or where a creditor parts w ith value or where th e new promise is substituted for th e old debt, or where levy or execution is re­
leased or there is benefit m oving to promise from any p a rty or where
a factor undertakes for a commission to guarantee a sale, contracts
to answer for th e default of another need not be in writing. Transfer
?2FsoPa^ Property capable of m anual delivery, except wine in cellars
and tanks, when n ot accompanied by delivery and change of possession are deemed fraudulent as to third parties unless notice of intent­
a i ? * sale 18 recorded 5 days before transfer is m ade in 1accordance
with law.
S u p p le m e n ta r y P ro c e e d in g s. W hen an execution Is returned
unsatisfied, the judgm ent creditor can obtain an order requiring the
judgm ent debtor to appear and answer concerning his property before
tne judge or referee appointed by him. also, in case after the issuing

BANKING AND COMMERCIAL LAWS—COLORADO
ot an execution, upon proof by affidavit th a t the judgm ent debtor has
Droperty which he unjustly refuses to apply toward the satisfaction
of the judgm ent, th e Judge m ay m ake the order, and Instead thereof,
if it appear tn a t th e debtor is about to abscond, he m ay, by order of
the luage, be arrested and required by him to give security for the
ludnnent. o r th a t he will atten d from tim e to tim e during the pen­
dency of th e proceedings, and th a t he will not in the m eantim e dis­
pose of any portion of his property, and in default of security he may
be committed to prison.
Taxes. On th e first M onday of December of each year taxes become
delinquent, except the last installm ent of the real property taxes, and
thereafter 15 per cent is added for delinquency; provided, th a t it they
be not paid before th e last Monday in April next succeeding, 5 per
cent is added for delinquency. On the last Monday In April, of
each year, all th e unpaid portion of the rem aining one-half of the
taxes on all real property is delinquent, and thereafter 5^per cent is
added for delinquency; and provided further, th a t the entire ta x on
any real property m ay be paid a t the tim e the first installm ent as
above provided is due and payable; and provided further, th a t the
taxes on all personal property, unsecured by real property, shall be
due and payable im m ediately after th e assessment of said personal
property is m ade. Public U tility corporations are taxed for the
support of th e S tate other property, is taxed for county and city
purposes.
W ills. Every person over th e age of eighteen years, of sound
mind, m ay, by last will, dispose of all his estate, real and personal.
A married woman m ay dispose of a ll her separate estate by will w ithout
the consent of her husband, and m ay alter or revoke the will in like
manner as if she were single. H er will m ust be executed and proved
in like m anner as other wills. Every will other th a n a nuncupative
will m ust be in writing, and every will other th a n an holographic
will and a nuncupative will, m ust be executed and attested as follows:
1
I t m ust be subscribed a t the end thereof by the testa to r himself,
or some person in his presence, and by his direction m ust subscribe
his name thereto. 2. The subscription m ust be m ade in the presence
of the attestin g witnesses, or acknowledged by thé testa to r to them
to have been m ade by him or by his authority. 3. The testa to r
must, a t th e tim e of subscribing or acknowledging the same, declare
to the attestin g witnesses th a t the instrum ent is his willi and 4.
There m ust be two attestin g witnesses, each of whom m ust sign his
name as a witness a t th e end of the will, a t the testa to r’s request,
and in his presence and in th e presence of each other. An holo­
graphic will Is one th a t Is entirely w ritten, dated, and signed by the
hand of th e testa to r himself. I t is subject to no other form, and may
be made in or out of th is State, and need not be witnessed. A wit­
ness to a will should always w rite his name and residence. All
devises or gifts to a subscribing witness are void unless there are two
other com petent subscribing witnesses. No will m ade out of this
State Is valid as a will in this S tate, unless executed according to the
provisions of th e code, except th a t a will m ade in a S tate or country
In which th e testa to r is domiciled a t th e tim e of his death, and valid
as a will under th e laws of such S tate or country is valid in this State
as to personal property. Wills proven o ut of state m ay be recorded
in county where testator has left over estate.
Bequests for charity are void unless m ade more th an 30 days
before death an d m ust in no case exceed more th an one third of the
estate unless there are no legal heirs. Wills are revoked by marriage
unless provision for th e sam e or an intention not to provide clearly
appears.
/

SYNOPSIS OF

T H E L A W S OF COLORADO
RELA TING TO

BANKING AND COMMERCIAL USAGES
Revised by Messrs. G arw ood and G arw ood , A ttorneys a t Law,
Denver. (See Card in A ttorneys’ List.)
A c k n o w le d g m e n ts. Of deeds and instrum ents concerning real
estate, m ay be tak en as follows:—
„
. . .
1. W ithin this S tate, before any judge, clerk, or th e deputy clerk
of any court of record, clerk* and recorder of any county, or his deputy,
or notary public, or before any justice of the peace within uis county.
2. O ut of th is S tate and within th e United S tates before the
secretary o f an y such S tate or T erritory, th e clerk of any court ch
record, an y no tary public, or an y commissioner of deeds for any
such foreign S tate or T erritory appointedJander the laws of this
State; before any other officer authorized by th e laws of an y 'su ch
State or T erritory to tak e'a n d certify such acknowledgment¡provided,
there shall be affixed to th e certificate of such officer, other th an
those above enum erated, a certificate by the clerk of som®
of record of th e county, city or district wherein such officer reside«,
under th e seal of such court, as to the official capacity, true signature
and au th o rity of th e person certifying such acknowledgment.
,
3. Out of th e United States, before any judge, clerk, or deputy
clerk, of any court of record of any foreign kingdom, empire, republic
state, principality, province, colony, island possession
before th e chief m agistrate or other chief executive officer of any
province, colony, island possession or bailiwick, before th e m ayor
or chief executive officer of any city, town, borough, county or m u­
nicipal corporation, having a seal, or before any ambassador, min­
ister, consul, consular agent, charge d affaires, commercial agent,
or any vice consul, etc., or any diplomatic, consular or commercial
agent or representative, or deputy of any thereof, of the united

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1561

States or a n y .other governm ent or country appointed to reside in
the foreign country . or place where the acknowledgment is made,
each and all certifying same under his official seal.
.
4.
Out of the State, and within any colony, island possession
or bailiwick of the U nited States, before any such officer as above
enum erated in relation to acknowledgments in foreign countries
(except .ambassadors, etc.) or before any notary public, paving a
seal.
A ctio n s. The distinction between the forms of actions a t law and'
suits in equity is abolished, j^.11 actions m ust be prosecuted by the
p arty in interest, and are governed by a code of civil procedure.
A d m in is tr a tio n o f E s ta te s . All dem ands not exhibited in one
year are barred, unless such creditor can find other estate of the
deceased not Inventoried, saving, however, to femmes covert, persons
of unsound minds, imprisoned or beyond the seas, the term of one
year after their disability has been removed to exhibit their claims.
Creditors haying liens on the property of the decedent" ,can not fore­
close for one year unless perm itted by the court and in no event
until the claim has been allowed. Adm inistration is granted to
Surviving husband or_widow, of next ot kin of an Intestate, if they
Will accept or are not'disqualified; if no such relative appears .within
tw enty days after death of intestate, aom inist ration m ay be granted
to a creditor; if no creditor appears In ten days after tw enty days
from death of intestate, or if next of kin files w ritten relinquishm ent,
county judge m ay select adm inistrator. In counties having a popu­
lation of more than 50,000 on default of relatives adm inistration
is m ade by public adm inistrator. An abbreviated form of adm inistra­
tion is provided for estates n ot exceeding $500.00. (See Wills; H usband
and Wife; Descents and Distributions.)
A g e n t. (See Partnerships.)
A lien s. Mo restrictions as to aliens.
A r b itra tio n . Dlderences m ay be subm itted to arbitration by
consent dl the parties In the form prescribed by statu te, and a judg­
m ent m ay be entered by the clerk of the D istrict Court upon the
finding of the arbitrators.
A rre s t. Im prisonm ent for debt, except in cases where one refuses
to deliver up his estate for the benefit of his creditors, or in cases
of to rt or where there is a strong presum ption of fraud, is abolish«*!.
In civil actions founded upon to rt, where the finding Is in favor of the
plaintiff and the verdict states t hat defendant was guilty of fraud;
malice, or willful deceit, execution m ay issue against the body ot
the defendant, b u t not where the defendant shall have been con­
victed in a criminal proceeding for the same wrong. Im prison­
m ent shall not exceed one year, and the prisoner is released upon
paym ent of the debt. T h e writ of ne exeat is granted under proper
circumstances. (See F raudulent Purchasers.)
A s s ig n m e n t. Assignments for the benefit of creditors m ay be
made In accordance with provisions of the Assignment Act. Assign­
m ents of wages not covered a t the tim e of the assignm ent, or of
other sums to become due to th e assignor, are invalid unless recorded
with the recorder of the county where the wages are to be earned,
or the sums are to become due, within five days from date thereof.
If the assignor is a married m an or woman, residing w ith th e wife
or husband, he or she m ust join in the assignment. There are also
provisions regulating assignments to wage-brokers and others.
A tta c h m e n ts . In actions on contracts, express or implied, the
plaintiff m ay have th e defendant’s property attached, upon filing a
bond in double the am ount sued for, w ith affidavit of plaintiff, his
agent or attorney, setting forth th e am ount and nature of the debt
claimed, and one or more of th e following grounds of attachm ent;
1 T h a t defendant is a non-resident. 2. A foreign corporation.
3 A corporation whose chief office or business is out of th is State.
4 Is evading service, or has been absent from S tate for four m onths,
while debt has been overdue. 5. Is about to remove his property
out of State. 6; H as 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. H as failed or refused to pay th e 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. T h a t the defendant
fraudulently contracted the debt, or procured th e money or property
ot the plaintiff. In Justice courts, th e tact th a t 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 attachm ent. Garnishee proc­
ess will issue in aid of attachm ent when money or property of the
debtor is found in possession of th ird persons; property of non-resi­
dents" and absconding debtors can be attached as in m ost other States.
B a n k s, S ta te . Any num ber of persons, n ot less th a n three, m ay
engage in th e business of banking: th e Capital stock m ust n ot be less
than from $10,000 to $50,000 dependent upon population, all of which
m ust be paid in cash before commencing banking business, and cer­
tificate thereof filed. Generally no bank m ay take as security a
lien on any p a rt of its capital stock; nor take as security a lien on
any p a rt of th e capital stock of other banks; nor take as security a
lien for any person on more th an 25 per cent of the to tal shares of
any other bank; nor m ay it hold or purchase any portion Of its own
stock, or of the capital stock of any other corporation, unless such
purchase is necessary to prevent loss upon a debt previously con­
tracted in good faith, or in other peculiar circumstances. Stock so
purchased m ust be sold within three years, and sooner if this can be
done w ithout im pairing th e bank’s investm ent. Shareholders in
banks, savings banks, tru st deposit and security associations shall be
held individually responsible for debts, contracts, and engagem ents of
said association in double th e am ount of th e par value of th e stock
owned by them respectively. Any banker, bank officer or employee
who receives money on. property after he shall have had knowledge of
the insolvency of said bank, shall be deemed guilty of a felony, and,
on conviction, punished by im prisonm ent in th e penitentiary for not
more th an tw enty years, or by a fine or n ot more th an $2,000, or both,
and in addition shall be individually responsible for th e property
received. Failure of th e bank or banker w ithin th irty days after
receipt of such m oney or property is prim a facie evidence of knowledge
of th e insolvency a t th e tim e of such receipt. Loans to any one
individual or corporation are lim ited to 20 per cent of th e paid in
stock and surplus of th e hank. Loans secured on real (estate lim ited
to 25 per ce n t'o f to tal interest bearing securities and to a p erio d of
three years, b u t further loans allowed secured by first m ortgage on
real estate w orth double am ount of loan lim ited to 50 per cent of
saving deposits and to a period of five years. N o bank m ay engage in
trade or commerce; or acquire realty, except such as is necessary for its
business or such as is necessarily acquired in th e protection or satis­
faction of previously existing loans m ade in good faith. Any realty so
acquired m ust be sold in five years, or sooner if possible. N o director
m ay borrow money in excess of 10 per cent of th e capital an d surplus,
without th e consent of a m ajority of th e directors other th an the
borrower. N o bank shall loan to an y officer or employe thereof.
Ail ha-nira except N ational Banks, are under th e supervision of the
S tate Bank Commissioner who examines each institution a t least
twice yearly. If he finds capital im paired, he requires th e bank te
m ake up deficiency, or takes possession for purposes of liquidation,
as circum stances m ay require. Insolvent banks m ay be placed in con-

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BANKING AND COMMERCIAL LAW S—COLORADO

trol of tb e S tate Bank Commissioner. Usually no receiver can be
appointed, nor can a bank m ake an assignm ent for creditors. Every
bank m akes reports of its condition to th e commissioner five times
yearly. No bank can do business without a certificate of authority
from th e commissioner. Savings banks are subject to th e sta te
banking law under a num ber of special provisions and restrictions.
B ills o f E x c h a n g e . (See Commercial Paper.)
. B ills o f L a d in g a n d P ro m is s o ry N o tes. (See Commercial Paper.)
. C h a tte l-M o rtg a g e s when recorded are good for two years where
sum secured does not exceed $2,500; for five years, when sum does not
exceed $20,000, and not exceeding ten years where sum secured
exceeds $20,000; b ut if the sum secured be greater th an $2,500 m ort­
gagee m ust annually record statem ent stating th a t the mortgage
secures a bona fide indebtedness, the portion which has been paid,
and tb e am ount still due. * C hattel m ortgages m ay be extended
after m aturity, b ut not more th an th irty days after m aturity,
b y filing an executed instrum ent of extension of mortgage with the
county recorder. As between the parties thereto, all chattel m ort­
gages are good until the indebtedness is paid or is barred by the
sta tu e of lim itations. 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 m ortgaged property
is larcenv Chattel mortgagee, his agent or attorney, now allowed
th irty days after m atu rity of debt in which to take possession of
mortgaged chattels, and during said th irty days, or until possession
is taken by mortgagee, his agent or attorney, the m ortgagor shall
have the right to pay said debt and have m ortgage discharged as if
deb t had been paid a t m aturity. Chattel mortgages, securing the
purchase price of any article may, a t any tim e within th irty days
after the m atu rity 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, m ust be made
by husband and wife Jointly.
C o lla te ra ls. Persons holding stocks in corporations as collateral
security n o t personally liable as stockholders fdr corporate debts.
A pledgee of stock m ay nevertheless represent same a t corporate
meetings. Transfer of stock either in pledge or otherwise, m ust be
noted on th e books of the com pany w ithin 60 days or the transfer
is void for some purposes.
.C o m m e rc ia l P a p e r. To be negotiable, an Instrum ent m ust con­
tain an unconditional order or promise to pay to order,* or to bearer,
a certain sum of money on demand, or a t a fixed or determ inable
tim e or times. The instrum ent m ay authorize tb a t upon default
of paym ent of any installm ent, or of interest, the whole shall become
due, and in case of non-paym ent, the sale of collateral securities,
or confession of judgm ent, or waive benefit of any law intended
for th e advantage of the obligor. An instrum ent payable on
contingency is not negotiable. The date expressed is prim a facie
th e tru e date. One in possession of an Incomplete Instrum ent has
prim a facie au th o rity to fill in the blanks, b u t au th o rity m ust be
strictly pursued. Consideration is prim a facie presumed. A pre­
existing debt is a valuable consideration. An accommodation p arty
Is liable to a holder for value with notice. Two or more payees,
unless partners, m ust all indorse unless one has authority for all.
An instrum ent payable to a person as cashier or other fiscal officer
of a bank or corporation is deemed prim a facie payable to the bank
or corporation, and m ay be indorsed by the corporation or by the
officer. F or one to be a holder In due course th e instrum ent m ust
be complete and regular, and taken in good faith for value before
overdue, and w ithout notice of any infirm ity In the instrum ent
or defect in title. Holder is deemed orlm a facie holder in due course;
b u t when th e title of a person who has negotiated it is shown to be
defective, th e burden is upon the holder to prove himself a holder
in due course. A qualified indorser w arrants the genuineness of
th e instrum ent; th a t he has a good title, and th a t he has no knowl­
edge of an y Invalidity. An unqualified indorser w arrants the Instru­
m ent valid ana subsisting. One indorsing an instrum ent nego­
tiable by delivery is liable as Indorser. E xcept when excused,
presentm ent for paym ent, or acceptance, on the day when due is
necessary to charge draw er or indorser of an instrum ent. P resent­
m ent m ust be m ade on due day, and notice of non-acceptance or
n o n p a y m e n t given on next business day to all parties prim arily
liable unless one has au th o rity for all. Every negotiable instrum ent
is payable a t the tim e fixed w ithout grace. W aiver of protest is
deemed a waiver of formal protest, presentm ent, and notice of dis­
honor. P rotest is required only in case of dishonored bills appear­
ing on th eir face to be foreign. I t is optional in case of other nego­
tiable instrum ents. Bills drawn and payable within this S tate are
inland; others are foreign. P arties secondarily liable are discharged
by extension of tim e of paym ent. P aym ent by a p arty secondarily
liable, unless a n accom m odation party, does not discharge the instru­
m ent. b u t he m ay again negotiate it. A qualified acceptance dis­
charges drawer and indorser unless they assent. Assent is presum ed
after notice, unless they dissent. H older can refuse to receive a
qualified acceptance.
No presentm ent for paym ent Is necessary
after non-acceptance. A note draw n to m aker’s order is n ot com­
plete unless indorsed by him. A check m ust be presented within
a reasonable tim e or draw er will* be discharged to th e extent of the
loss caused by the delay. The bank is not liable to the holder until
it accepts or certifies the check. W hen not otherwise provided by
this act, the law m erchant prevails. This act applies dnly to instru­
m ents executed on o r-after Ju ly 20. 1897. All instrum ents falling
due on Sunday or holiday are payable tbq next business day. In
Denver, during June, July and August, S aturday from twelve o’clock
noon u n til twelve m idnight is a holiday, b u t negotiable instrum ents
falling due on S aturday are payable and protestable on S aturday or
next business day a t the option of the holder. T he provisions con­
cerning commercial paper in this sta te are practically the same as
in all states where the Negotiable Instrum ents act has been adopted.
C o n v ey an ces. N o joint tenancy in real property unless expressly
declared in th e deed, except in certain particular cases. Unless
so declared grantees shall be deemed tenants in common. Lands
h ot in possession m ay be conveyed. N ot necessary for wife to join
in deed except in a conveyance of or a m ortgage of a homestead,
entered , as such of record.
Witnesses are unnecessary.
Seals
are n ot necessary b u t a printed or ink seal is advisable. Unacknowl­
edged deeds are deemed notice from the date of filing b u t they can
not be read in evidence unless subsequently acknowledged or proved,
unless they are on record for over th irty years. £ (See Acknowledg­
m ents; H usband and Wife.)
: C o rp o ra tio n s .
Three or more persons m ay form a corpora­
tion by filing a certificate in the proper offices, stating the nam e,
objects for which organized, am ount of capital stock, num ber of
shares (not less th an $1.00 or more th an $100.00 per share), term of
existence (not to exceed tw enty years, except in particular cases),
num ber of directors (not less tn an three or more th a n thirteen), and
nam es of those to m anage th e corporation for th e first y ear, the place
where principal office is to be kept, and counties In which its business is
to be carried on. If p a rt of the com pany’s business is to be carried
on beyond th e l'm lts of the S tate, th a t fact shall also be stated in
th e certificate. The certificate shall also sta te w hether or n ot cum ula­
tive voting shall be perm itted. Fee for filing Articles of Incorporation
of dom estic companies is $20, and 20 cents on each thousand dollars
in excess of $50,000. Foreign corporations $30, and 30 cents on each


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thousand dollars in excess of $50,000 represented by capital, p roD ertv
and assets employed and located in Colorado. Directors of a mmina
or m anufacturing corporation cannot encumber the mines or niant
of such corporation until the question has been subm itted to the
stockholders and a m ajority vote of all the shares of stock has been
m ade in favor of such proposition; and such m ortgage or encumbrance
w ithout such consent is absolutely void. Cum ulative method of
balloting for directors is perm itted. Stockholders are liable for
corporate debts to the am ount unpaid upon the stock, except that
stockholders in banks, saving banks, trust, deposit, and security
associations are individually responsible in double the am ount of the
par Value of their stock. When the stock becomes fully paid ud a
certificate to th a t effect should be filed. The directors are required
annually, and within sixty days from Januray 1st, to file a report
stating th e am ount of the capital stock, the proportion actually paid
In, and the am ount of existing debts, together with m any other
particulars. A failure to file such report m akes all the directors and
officers of the company jointly and severally liable for all the debts
of the com pany contracted during the year next preceding the time
when such report should have been filed, and until such report shall
be m ade and filed, and subjects president and secretary to a fine of
not less th an $1,000. N o m eetings of th e board of directors can be
held outside thç S tate unless so provided by the Articles of Incor­
poration. Corporations m ay be dissolved by a two-thirds vote of
the entire stock. A corporation under the laws of Colorado, may
extend Its charter by special meeting of the stockholders, called
by 10 per cent of the entire capital stock. Corporate life shall be
renewed for entire term , not exceeding tw enty years. Foreign
corporations doing business In this S tate are not allowed a longer
term of corporate existence th an dom estic corporations of like char­
acter, b u t m ust file renewal certificates and pay fees therefor in the
same m anner as domestic corporations, provided th a t such renewal
m ust not extend th e life of the foreign corporation beyond the term
fixed by the S tate 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 perm itted to do any business or prosecute or defend any suit in
this State, until it has filed in the proper offices copy of its charter and
incorporation act, and designated an agent upon whom 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 paym ent.
In addition to all other fees and taxes, every dom estic corporation
shall pay on or before the first day of M ay of each year, an annual
S tate corporation license tax to the secretary of th e S tate of Colorado,
of tw o cents upon each one thousand dollars of its capital stock, and
every foreign corporation shall pay a t th e sam e rate upon th a t pro­
portion of its capital, property and assets located and employed in
Colorado.
O ther provisions of the Revenue bill, approved March 22, 1902,
and this aot regarding annual reports, assessm ent of tangible and
, intangible property, etc., too voluminous to be quoted, make it
advisable th a t care should be exercised by both dom estic and for­
eign corporations operating in th e S tate to acquaint themselves fully
with Its requirem ents
(See G uaranty Companies; T rust Companies;
Transfer of Corporation Stock.)
C o u rts . Justices of the peace have jurisdiction in m atters involv­
ing less th an $300, county courts in m atters involving less than
$2,000, except in the adm inistration of estates, where jurisdiction
is unlim ited. The district court is th e court of general jurisdiction.
T he supreme court is the court of final appeal, and also has some
original jurisdiction, as in cases of habeas corpus, m andam us and
other remedial writs.
D ay s of G race. Are abolished. (See Commercial Paper.)
D e p o s itio n s . The deposition of a witness o ut of the S tate 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’
revious notice to the other, which notice shall be accompanied
y a copy of the interrogatories to be attached to the commission.
I t m ay be issued to a person agreed upon by the parties or .to any judge
or justice of the peace, or to a commissioner appointed by the gover­
nor of the S tate to take affidavits and depositions in other States
and Territories, or to a notary public. The adverse p a rty m ay file
and have attached to the commission such cross-interrogatories
as he m ay desire. Parties m ay agree by w ritten stipulation to
take the deposition orally, or, upon proper cause shown, m ay obtain
an order of court directing it to be so taken. Depositions can be
taken a t any tim e after starting suit
D e s c e n ts a n d D is tr ib u tio n s . The estate of an intestate descends
one-half to the surviving husband or wife, and the residue to the
surviving children and descendants of children, If any; if none,
then the whole descends to such surviving husband or wife. Except
as enum erated the estate of every intestate descends: 1. To his
children surviving, and the descendants of his children who are dead,
the descendants collectively taking th e share which their parents
would have taken if living. 2. If no children nor their descendants,
then to his father and m other, share and share alike, an a if one dead,
then to the other; if no father or m other, then to his brothers and
sisters, and to descendants of brothers and sisters who are dead,
the descendants, collectively, taking th e share of their immediate
ancestors in equal parts. 3. If none of the foregoing living, then to
the grandfather, grandm other, uncles, aunts and their descendants
the descendants taking collectively the share of their immediate
ancestors in equal parts. 4. If none of the relatives above enu­
m erated be living, then to th e nearest lineal ancestor and their descend­
ants, th e descendants collectively taking the share of their immediate
ancestors In eqjual parts. All posthum ous children or descendants
of the intestate, inherit as if born in the lifetim e of the intestate;
and all children of the half blood and all legally adopted children
shall inherit as children of the whole blood. Illegitim ate children
Inherit if parents subsequently Interm arry.
D ow er. Common law Dower and curtesy are abolished, as such,
b ut sta tu to ry half of husband and wife in each others estate is given
in lieu of old common law dower and curtesy. (See Statutes:)
E x e c u tio n s. Executions m ay be issued where no appeal is taken,
and when placed in the hands of an officer become a hen upon all
personal property of th e debtor not exempt, in th e county to which
it is issued, and it m ay be directed to the sheriff of any county in
th e State. Executions m ay issue upon judgm ents a t any tim e after
5 days from judgm ent and within tw enty yêars from th e date of entry
b u t from and after tw enty years from th e entry of judgm ent, it is
considered satisfied unless revived as provided by law. D ebtor or
legal representative has six m onths to redeem land from sale under
éxecution. , Judgm ent creditor has three m onths after expiration of
said six m onths. Judgm ents can be m ade a six year lien on real
estate of debtor by filing transcript w ith recorder of th e county where
th e real estate is situated.
E x e m p tio n s . Hom estead, consisting of town house and' lot or
lots, or of any farm to th e value of not to exceed $2,000, is exempt,
when such hom estead has been entered' of record as such, and is
occupied by a householder, th e head of a fam ily. Personal property
exem pt includes all wearing apparel of the debtor and his family
pictures, school books and library, beds and bedding, stoves, cook­
ing utensils, and household furniture, not exceeding $100; provisions
and fuel for six m onths; tools, implem ents, or stock in trade, up to
$200; one cow and calf, téh sheep and necessary food for’six months;

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following order: 1. Laborers or mechanics working by the day
working animals, up to $200; th e library and Implements of a pro­
or piece, w ithout furnishing ma terial. 2. Sub-contm ctors and
fessional m an up to $300; one bicycle and one sewing machine.
material-m en, whose claims are either entirely or principally for
Persons n ot th e heads of families are entitled to tools, w orkinganlm als,
m aterials, m achinery or other fixtures. 3. All principal contractors.
and stock In trade, n ot exceeding $300 In value. When debtor
Laborers are allowed one m onth, m aterial m en two m onths, and the
is head of family, or wife of head of family, 60 per cent of wages
original contractor three m onths after th e com pletion of th e structure,
due a t tim e of levy, under execution, attachm ent, or garnishm ent.
within which to file claim of lien. Action to enforce such lien m ust be
Is exempt, when such family resides In the S tate and Is dependant,
commenced within six m onths after completion of the bunding
wholly or partially upon such earnings for support. If such wages
upon which it is claimed
>
do not exceed $5 per week a t the tim e of levy, they are entirely
M o rtg ag es. O rdinary mortgages on realty are in common use;
exempt.
also deeds of tru st to a public trustee and to private trustees. A
F ra u d . Parties to an y fraudulent sale of any lands, goods or
tru st deed to private trustee is foreclosed as is a mortgage. In case
chattels, or who, conceal, secrete, remove or dispose of any goods
the public trustee is named, the property is sold by him as provided
or chattels, or ir e parties to any bond, suit, judgm ent. or exe­
in th e deed, after advertisem ent in a newspaper designated in the
cution. contract or conveyance had made, or contrived with
tru st deed, and such advertisem ent shall not be less th an four weeks.
intent to deceive and defraud, or defeat, hinder, or delay creditors,
Upon a sale by th e public trustee, a certificate _pf sale is issued. A
are crim inally liable. One who purchases goods on credit under
subsequent incum brancer m ay redeem by paying trie am ount bid,
an assumed or fictitious nam e with in ten t to defraud the seller,
and the sum so paid shall be added to the am ount of the subsequent
or having purchased goods on credit shall, w ith in ten t to defraud
incumbrance. The grantor in the tru st deed, or his \ assigns m ay
the seller, sell, hypothecate, or otherwise dispose of them out of the
redeem from sale within six m onths. After six m onths, and within
usual course of business, or secrete himself, or abscond, shall be
nine m onths, a judgm ent creditor m ay redeem. After the expiration
guilty of a misdemeanor.
of the period of redem ption the public trustee executes a deed to
th e property to the holder of the certificate of sale, which is assignable.
F ra u d s , S t a t u t e o f. The following m ust be In w riting: Con­
Redemption from sales of m ortgaged property the sam e as sales under
tracts for leasing of land! for period longer th an one year o r-fo r
the sale of lands, or any Interest in lands; every agreem ent which
executions.
by its term s Is not to be performed within one year; every special
N o tes a n d B ills of E x c h a n g e . (See Commercial Paper.)
promise to answer for th e debt, default or miscarriage of another,
P a r tn e rs h ip s , L im ite d a n d S p ecial.
A lim ited partnership
every agreem ent, promise, or undertaking m ade upon consideration
m
ay
consist of one or more general partners. Jointly and severally
of m arriage, except m utual promises to m arry, and every contract
liable, and one or more special partners contributing a specifled
for th e sale of an y goods, chattels, or things In action, for the price
am ount of cash or property, who are not liable for the debts of the
of $50 or more, unless th e buyer accepts and receives p art of such
partnership beyond the am ount so contributed. Only the general
roods or th e evidence of some of them , or the buyer a t the tim e
partners can bind the firm. A certificate m ust be signed, acknowl­
pays p a rt of th e purchase money. (See Sales of Personal Property.)
edged. published, and filed of record giving details of partnership.
G a r n is h m e n t. (See Attachm ents.)
All persons doing business under any name other th an their per­
sonal names, m ust file an affidavit showing the real persons repre­
H o lid a y s. The following are legal holidays in Colorado: F irst
sented, or they m ay n ot bring suits upon debts due, and m ay be
day of January. 12th day of February.
22nd day of February.
' 30 th day of M ay. 4 th day of July. 25th day of December. Thanks­
convicted and fined.
giving Day. Arbor Day, being 3rd Friday m April. Colorado Day,
P o w ers of A tto r n e y . Powers of attorney for the conveyance
being August 1st.
Labor Day, being 1st M onday in September.
of lands m ust be acknowledged in the same m anner as deeds, ana
Columbus Day, being 12th day of October. In addition to the above,
m ust be recorded In the same county wherein the real property to
Saturday is a legal half holiday during June, July and August in all
be conveyed is situate.
cities of Colorado having a population of 100,000 and over. N o t all
P ro te s t. (See Commercial Paper.)
the above are legal holidays for every purpose.
R e p le v in . A w rit of replevin m ay issue in any suit to recover
H u s b a n d a n d W ife retain their separate property, real, personal
possession of personal property upon filing a bond in double the
and mixed owned a t m arriage, and any such property which shall
value of the property, with affidavit of ownership or right to pos­
come to either of them by descent, devise, or bequest, or the g u t
session. wrongful detention and value of property,* etc. Redelivery
of any person, for their own separate use. Such property of the
bond In similar am ount m ay be given by defendant In 48 hours alter
wife is not liable for the husband’s debts. Wife m ay carry on trade
levy.
or business, sue an d be sued, contract debts, and execute promissory
notes, bonds, bills of exchange, and other instrum ents precisely as
Sales of P e rso n a l P ro p e rty . Every sale or assignm ent of goods
and chattels in the possession or under the control of the vendor
If sole and m ay convey real estate w ithout the husband Joining in
the deed. Any ch attel mortgage upon, or sale of. the household
Is void, as against creditors or subsequent purchasers In good faith,
goods used by th e family, and any conveyance of. or mortgage upon,
unless accompanied by im m ediate delivery and followed by actual
a hom estead, an d any assignm ent of future wages, or sums tobecom e
and continued change of possession. Sales of any portion of a stock
due in th e future, when m ade by husband or wife residing with the
of m erchandise otherwise th an In the ordinary course of trad e are
Drima facie fraudulent and void against creditors, unless seller and
other, m ust be joined in by th a t other. A m arried woman m ay
mnifP. a will, b u t neither husband nor wife shall devise or bequeath
purchaser together, before sale, m ake inventory, showing quantity,
more th an half of his or her property away from the other w ithout
and cost price of the various articles; and unless purchaser makes
the consent In writing of th e other, executed after death of the testato r
full lnauiry of the seller as to names and addresses of all creditor!
or of testatrix . Marriage revokes a will previously m ade. The
of seller, and the am ount due to each, and obtains an answer; and
husband is liable for th e debts and liabilities of the wife contracted
notifies each creditor of the proposed sale, the cost price, and .the
proposed selling price; and unless the purchaser retains the Inventory
before m arriage to th e ex ten t of the real and P sonal, P
and w ritten answer a t least six m onths after th e sale. This act
he m ay receive w ith or through her, or derive from the sale or rent
of her lands, and no further. The expenses of the family and the
does not apply to sales by legal representatives of public officers
education of th e children are chargeable upon th e property of both
conducting sales in their official capacity and there are some other
husband and wile, and In relation thereto they m ay be sued Jointly
exceptions to this law. (See H usband and Wife.)
or severally. E ith er husband or wife living together can separately
S u its . (See Actions.)
declare property of record in the nam e ° f , tb e . o th erw A
T axes are generally a lien on real estate until paid, as also upon
stead,” by an en try of record o v e rh ls or her signature. N either can
stocks of goods including new goods added thereto. Taxes m ay
mortgage nor convey hom estead w ithout the signature of the other.
be paid in two semi-annual installm ents; the first half on or before
I n te r e s t. The legal rate Is 8 per cent, b u t any other rate not
the last day of February, and the residue on or before the last day
exceeding 12 per cent m ay be fixed by agreem ent. E ight per cent is
of Ju ly of the year following the one In which they are assessed.
allowed on overdue bonds, bills, promissory „notes, and Judgments.
Tax sales are held in Novem ber when tax certificates are given to
County, town, an d city warrants, and other like evidences or certiipurchasers on which treasurer’s deed m ay issue a fte r th ree_years.
icates of municipal indebtedness bear 6 per cent interest from Pr®s®nta;
Real estate sold for taxes redeemed any tim e until treasu rers deed
tion. Twelve per cent is th e maximum interest rate fixed by th e usury
issues. All mines and mining property of th e class heretofore exem pted
aw, of th is state.
by th e constitution of th e S tate shall be assessed and taxed, and th e
J u d g m e n ts . A transcript of judgm ent m ay be filed In the office
taxes levied and enforced by sale of the property taxed in default
of th e county clerk and recorder of any county In the S tate, ana
of paym ent, as is provided by law in th e case of other classes of taxable
real properties. D elinquent taxes carry interest a t th e rate or 12 to
thereupon such judgm ent becomes a lien upon all real Property
18 per cent per annum . Household goods to the value of $200 belong­
owned Dy th e judgm ent debtor in th a t county. The lien holds for
six years from th e date upon which filed (and successive transcripts
ing to a head of a family are exempt.
m ay b f filed ) An unsatisfied judgm ent should be revived every
W ills. Males of the age of twenty-one years, and females of
tw enty years. (See Executions.)
the age of eighteen years, m ay dispose of their property W M j k
L im ita tio n s . Actions for the recovery of land m ust be brought
but personal property m ay be disposed of by will by any person
within tw enty years after accrual of right. Actions fpr the recovery
of the age of seventeen years. For restrictions as to m arried persons,
of lands actually occupied by another under a connected title deduos e e ‘‘H usband and W ife.” All wills, whether of realty or personalty
lble of record or under tax or execution, or other sale ordered by
shall be in w riting,signed by the testa to r or some one for him In
court m ust be brought w ithin seven years after possession taken.
his presence and a t his direction, and attested in his presence by
If title is acquired after taking possession, sta tu te runs from date
tW> or more credible witnesses. Unless otherwise expressed In the
of acquiring title. A ctual possession of land for seven years under
wiT an after-born child will share In the -property. „Devises and
claim and color of title w ith paym ent of aU taxes for said period,
bequests to witnesses are null and void, unless the will be attested
constitutes th e possessor owner according to the purport of his paper
bv a sufficient num ber of witnesses exclusive of such persons. No
title The same is tru e of v acant and unoccupied lands, unless someone
will can be revoked otherwise th an by th e subsequent m arriage
with a b etter paper title pays the taxes for one or more years during
of the testator, or by burning, tearing, or obliterating the sam e by
such term of seven years. Actipns of debt founded upon contract,
the testator, or in his presence and by his direction and consent,
express or implied; upon Judgm ents of courts not courts of record,
or by another will or codicil, declaring the same, duly signed and
for arrears of rent; of assum psit—or case founded on any com ract,
witnessed or by a formal annulm ent thereof. The property devised
for waste and trepass on land and for replevin, m ust be begun within
bv will m ust be adm inistered by th e county court, and all property
six years after th e cause of action accrues. Actions against sheriffs
of non-residents m ust generally be adm inistered to clear title to
and coroners, for liability incurred by them in their official capac­
real property situated, iu this State. (See H usband and Wife. De­
ity, shall be brought w ithin one year after the cause of action accrues,
scents and Distributions. A dm inistration of E states.)
also actions for assau lt’ and b attery , false im prisonm ent, slander
and libel; also actions for penalties or forfeitures of penal statutes
Bills of relief for fraud m ust be filed w ithin three years
covery, In case of a tru st not cognizable by the courts of common
law w ithin five years. In actions accruing o ut of the
contract, express or implied, or upon any sealed instrum ent m writing,
or judgm ent or decree of any court, more th an six years before the
commencement of th e action, th e sta tu te of lim itations m ay be pleaded
In b ar of recovery. If a judgm ent has been rendered w ithout this
S tate more th an three m onths before suit in this S tate, and is based
on a cause of action more th an six years old, such cause of action
can be pleaded in bar of the judgm ent. The
hti
this la tte r provision has, however, been attacked, and Is very doubt­
ful. (See 117 Fed. 400.)
M a rrie d W o m e n . (See H usband and Wife.)
M e c h a n ic s’ L ie n s. Mechanics, m aterial-m en, contractors, sub­
contractors, builders, miners, and aU persons of every class
labor upon, or furnishing m aterials used in th e construction or repair
of an y building, o r an y other structure or im provement upon land,
also all who have rendered their professional, skilled service upon
such structure, have a lien upon the property ; also ^ o s e who work or
furnish m aterials or m achinery for the working of a mining claim
o r . m ineral deposit, shall have a similar lien. Liens rank in the


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1564

BANKING AND COMMERCIAL LAWS—CONNECTICUT
SYNOPSIS OF

T H E L A W S OF CONNECTICUT
RELATING TO

¿ÂNKING AND COMMERCIAL USAGES
Revised

by

Louis M.

R

osen blu th,

Attorney at Law, New Raven

, In a11 actons for a book debt, the entries of the
PIS” 1®,! *£ t? elr respective books shall be admissible in evidence
(for limitation of actions on accounts, see Limitations to Suits.)
Acknowledgments. (See Conveyances.)
jetions.; There is but one îorm of civil action. Mesne process
in myil actions consists of a writ of summons or attachment, de­
scribing the parties, the court to which it is returnable, and the time'
and place of appearance, and embodies the plaintiff’s /complaint
Ail such writs shall be signed by a justice of the peace, commissioner
of the superior court, or judge or clerk of the court to which it is
returnable. The complaint should contain a concise statement of
the facts constituting the cause of action and a demand for relief
and legal and equitable relief may be demanded in the same action,
except in actions before justices of the peace, who have no eauitv
jurisdiction.
,
A dm inistration 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 vaiue of the personal property. Bonds of surety companies
authorised to do business in the State may be accepted. Where
the will waives the bond a nominal bond is required, usually in double
•
,a510Unt 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 ôf 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
nenent of the estate, after due application to and hearing in probate
. Afti<lavlts’ . Cij11 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 teal estate in this State in as full a manner as native-born
citizens.
A rbitration. Parties to any controversy desiring to submit the
same to arbitration under a rule of court, and having signed and
sworn to an agreement to that effect, may, upon AHng 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 Anally concluded by such
arbitration; or the said parties may personally appear in court
and acknowledge that they halve 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 Aductary 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 nniRm»
each cause of action in the complaint be such that execution may
be issued against the body of the defendant upon the judgment
founded thereon. A debtor committed to jail on civil process can
be released on taking poor debtors’ oath. The debtor will not be
released if his oath is overcome by rebutting evidence.
A ssignments in Insolvency. Operation of this section sus­
pended during continuance of U. S. Bankruptcy Act.
A ttachm ents. 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 T a i.

(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 propertv
held on such conditional sale.


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C o n tr a c ts . Ordinary provisions of S tatu te of Frauds abnlv
Courts of probate having jurisdiction of the settlem ent of the estnf*
of any deceased persoo may. concurrently with the courts of eauitv
authorize the executor or adm inistrator to convey the title of the
deceased in any real estate to any person entitled to it, by virtu«
Pf al*y contract oL such deceased person, and the court of probat»
in which the guardian of any m inor has been appointed mav in
like m anner, order such guardian to convey the interest of his ward
in any read estate which ought in equity to be conveyed to anoth«»
person. Contracts for the conveyance of lands or of any fnterest
H erein, m ay be recorded In the records of the tow n in which such
lands are, and such record shall be notice to all the world of th»
equitable interest thus created. Gaming or wagering contract»
are void. C ontract of incapable person pending appointm ent of
conservator or of spendthrift pending appointm ent of overseer void
when selectm en have Aled in town clerk’s office certiAed coov of
application in case of Incapable person, and certiAed notice of pro­
posed appointm ent in case of spendthrift. No person who receive!
a valuable consideration for a contract, express or implied, made
on Sunday, shall defend any action upon such contract on the ground
th a t it was so made until he restores such consideration. The Uniby*Retaif D e ^ e r s tSSe<1 ^ 1807 covers contracts to sell. (See Sales
C o n v e y a n c e s. All conveyances of land m ust be in writing
signed, sealed, and acknowledged by th e grantor, and attested by
two subscribing witnesses. The word “ seal” or the letters (L S I
m ay be used for a seal. The acknowledgm ent is m ade by the grantor
before a Judge of a court of record of this S tate or of the United
States, a clerk of the superior court, court of common pleas, or dis­
tric t court, justice of the peace, commissioner of the school fund
commissioner of the superior court, notary public, town clerk, or
d i s t a n t town clerk, if in this S tate, and if In any other State or
T erritory of the United States, then before a commissioner appointed
by the governor of this S tate, or any officer authorized to take the
acknowledgment of deeds in such S tate or T erritory, and If in a
foreign country, before an y consul of the United States, or notary
public, or justice of the peace in such foreign country. Conveyances
of real estate situated in this S tate, executed and acknowledged
in any other S tate or-Territory, in conform ity with the laws of such
S tate or Territory, are valid. If the land conveyed belongs to the
a Si ™
should Join In the conveyance, if married before
k prS .?°’ _J.877 • ^ If the land conveyed
belongs to the hus­
band, the wife need not join in the conveyance.
No separate exam­
ination of a m arried woman i s 1 required in taking her acknowledg­
m ent. Conveyances, including leases for more than one year, to
be effectual against any other person th an the grantor and his heirs
lies bG recorded on the town records of the town in which the land
C o rp o ra tio n s. Corporations may be formed under the general
laws by three or more persons for the transaction of any lawful busi­
ness except th a t of bank, savings bank, tru st company, building
and loan association, insurance company, surety and indemnity
com pany, steam railroad or street railway company, telegraph coma? , , gas a? d electric lighting, w ater com pany, or any company
which shall need to have the right of em inent domain.
A certiAcate of incorporation m ust be Aled, signed, and sworn to
by all the incorporators, giving the nam e and location of the corpora­
tion, the nature of the business, the am ount of authorized capital
stock, which m ust n ot be less th an 52,000, num ber of shares and
par value of each, which shall n ot be less th an 525, am ount of capital
stock with which it will commence business, wnich shall not be less
than 51,000. A certiAed copy m ust be Aled in the town clerk’s office
The organization fee m ust be paid to the State, of fifty cents on
every thousand of its authorized capital stock up to Ave million
no paym ent to be less th an 525.
Stock m ay be paid for either in cash or property, b u t If in prop­
erty, a m ajority of the directors m ust m ake and sl<m upon a record
book a statem ent of the am ount for which the property Is received
and its actual value. In case of fraud in such valuation, directors
personally liable.
CertiAcate of organization m ust be signed and sworn to by a m ajority
of the directors and Aled in th e office of the secretary of state, setting
forth the am ount of stock subscribed for, am ount paid in cash ana
m property, nam es and addresses of subscribers w ith num ber, of
shares subscribed for, statem ent th a t 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 S tate with the
name of the agent in charge.
. TJjeie Didst be a t least three directors; vacancies in directors may
be Ailed by rem aining directors.
No stock can be issued until it has been paid for in full. Receipts
for partial paym ents of stock m ay be issued by th e treasurer.
Oertin cates 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 m ay acquire its own
capital stock w ith the approval of three-fourths of the stockholders,
given a t a meeting called for th a t purpose.
Stockholders’ m eetings m ust be held in this S tate.
Similar corporations m ay consolidate.
- A, corporation m ay be wound up by voluntary agreem ent of all
stockholders, signed and acknowledged, directors acting as trustees
to wind up the business.
Receiver m ay be appointed on application of stockholders own­
ing one-tenth of the stock, In case of fraud, mism anagement, or if
assets are in danger of waste by attachm ent, or when corporation
has abandoned its business.
Annual statem ents m ust be filed in the office of the secretary of
state and a certiAed copy thereof in the town clerk’s office, either
in January or July, giving the nam es and addresses of the officers
and directors, am ount of outstanding stock n ot paid for in full with
the am ount due thereon, th e location of the principal office in this
S tate with the nam e of the agent in charge on whom process may
be served. F or failure to Ale annual statem ent the corporation
m ay forfeit 5100 to the S tate.
C o sts. F or case before justice of the peace, actual cash costs
not less th an 55; before city court from 55 to 525, according to
am ount involved; before court of common pleas or superior court,
not less th an 525; before supreme court of errors, not less th a n 550.
. . , r? e/ 8 fees n ot Included. A ttorney justlAed in asking deposit
of $15 for case in justice’s court and 550 in any other court before
bringing suit. (See Insurance Companies, Injunctions, etc.)
C o u rts. Terms and Jurisdiction. Superior court holds one term
per year in each county for the trial of civil causes, and has Jurisa ction in all law and equity cases exceeding 5500, and exceeding
5100 m those counties where there are no courts of common pleas.
Court of common pleas in H artford, FalrAcId, New London, ta d
New H aven counties, has exclusive law and equity jurisdiction above
5100 and below 5500, and concurrent Jurisdiction with the superior
court above 5500 and up to 51,000, and in LitchAeld County has
exclusive jurisdiction up to 51,000. N ot less th an four term s each
year are held in each of the counties named, and there are city courts
.
oRies, and a district court a t W aterbury, with limited
civil jurisdiction; also town courts in m any of the towns. Probate
courts have Jurisdiction of the settlem ent of the estates of deceased.
Insolvent, and incom petent persons, and are established in a large

BANKING AND COMMERCIAL LAW S—CONNECTICUT
number ot probate districts—one tor each district. Justices of the
peace have civil jurisdiction up to $100. In New H aven ana H art­
ford jurisdiction of justice of the peace has been transferred to city
court, except in cases of sum m ary process and bastardy.
D ays of G race. (See Notes and Bills of Exchange.)
Deed's. (See Conveyances.)
D ep o sitio n s. May be taken in a civil action by a judge or clerk
of any court, justice of th e peace, notary public, or commissioner
of the superior court, when witness lives o ut of the State, or more
th an tw enty miles from place of trial, is over sixty years of age and
unable to atten d 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 m ust be given to adverse party. Deponents m ust
be cautioned to speak the whole tru th , and carefully exam ined.
They m ust subscribe their depositions and m ake oath before the
authority taking the same, who shall a tte s t th^ same and certify
th at the adverse p arty or his agent was present (if so), or th a t 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 p arty a t whose request it was taken.
Depositions, m ay be taken in any o th er S tate or country by a
notary public, commissioner appointed by the governor of this S tate,
or by any m agistrate having power to adm inister oaths, and they
may also be taken before a foreign m inister, secretary of legation,
consul, or vice-consul appointed by the U nited States. If taken out
of the U nited 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 S tate, to be used in a cause pending
before such court. The superior court, upon petition, m ay allow
depositions to be taken to perpetuate testim ony concerning th at
which m ay th ereafter be the subject of a suit. The person taking
depositions m ay compel attendance of witnesses by subpoena and
capias.
D e sc e n t a n d D is tr ib u tio n of P r o p e rty in I n t e s t a t e E s ta te s .
(As to th e share of a.surviving husband or wife, see th e title Husband
and Wife.) A fter th e share of th e surviving husband or wife, the
residue of th e real or personal estate is distributed in equal pro­
portions am ong th e children and th e legal representatives of any of
them who m ay be dead (children who have received estate by advance­
ment of th e in testate in his lifetim e being charged with th e same in
the d istrib u tio n ). If there be no children or legal representatives
thereof, such residue shall be distributed to th e parent or parents,
then equally to th e brothers and sisters of the intestate of the whole
blood, an d those who legally represent them ; and if there be no
such kindred, th en equally to th e brothers and sisters of th e half
blood an d those who legally represent them ; and if none, then
equally to th e nex t of kin in equal degree, kindred of the whole blood
to tak e in preference to kindred of the half blood, in equal degree,
and no representatives to be adm itted am ong collaterals after the
representatives of brothers and sisters.
D ow er. (See H usband and Wife.)
E v id e n c e . (See Courts, Insurance Company, Corporations.)
E x e c u tio n s. Issue on final judgm ent, and are returnable within
sixty days. No execution issued in an action founded on contract
merely can be levied oh th e body of the debtor except for breach
of promise of m arriage, m isconduct or neglect in office or profes­
sional employment, or breach of tru st. Any judgm ent debtor, an
execution against whom shall have been returned unsatisfied in
whole or in p art, m ay be exam ined oh oath touching his property
and m eans of paying such judgm ent, and m ay be com m itted for
eontempt. (See Exemptions.)
E x e m p tio n s . Hom estead, to th e value of $1,000, if declaration
to hold it as such is recorded. Of the property of any one person,
his necessary apparel an d bedding and household furniture necessary
for supporting life; an y pension moneys received from the United
States while In th e hands of the pensioner (which has been construed
to cover also such pension money when deposited in a savings b a n k );
Implements of the debtor’s trade, his library n ot exceeding $500
in value; sundry dom estic anim als n o t exceeding $150 in value:
so much of an y deb t which has accrued by reason of the personal
services of th e debtor as shall n ot exceed $15, including wages due for
the personal services of an y m inor child (but there shall be no exem p­
tion of an y deb t accrued by reason of th e personal services of the
defendant against the claim for the defendant’s personal board, or
for the ren tal of an y house or tenem ent occupied by the defendant
as a place of residence when such rented shall not exceed $25); of
the property of any one person having wife or family, two tons of
coal, specified am ounts of food-stuffs; th e horse of any physician
or surgeon n o t 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 an y one person using it, or having a fam ily; one
pew being property of an y person having fam ily who ordina­
rily occupy it, and lots In any burying ground; and, all bene­
fits allowed by any association of persons in this S tate tow ard the
support of its m embers, incapacitated by sickness or infirmity, shall
be exem pted from foreign attach m en t or execution.
F o re ig n A tta c h m e n ts . Goods concealed in th e hands of agents
or debts due th e defendant are reached by foreign attachm ent which
takes th e place of garnishm ent. No assignm ent of future earnings
will prevent th eir attach m ent when earned unless m ade to secure
a bona fide debt, due a t the date of such assignm ent, the am ount
of which shall be stated therein as nearly as possible, nor unless
the term for which th ey are assigned shall be definitely limited in
the assignment, n o r unless recorded before such attachm ent in the
town clerk’s office in th e tow n where the assignor resides, or if he
resides w ithout th e S tate, In th e town where the employer resides, and
a copy left with the> employer. (See also Exemptions.)
F o re ig n C o rp o ra tio n s . Every foreign corporation, except insur­
ance and surety companies and building and loan associations and
investm ent 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 investm ents),
shall, before transacting business In this S tate, file in th e office of
the secretary of th e S tate a certified copy of Its charter or certificate
of incorporation, together w ith a statem ent, signed and sworn to
by its president, treasurer, and a m ajority of its directors, show­
ing th e am ount of its authorized capital stock and the am ount thereof
which has been paid in, and, if any p art of such paym ent has been
made otherwise th an In cash, such statem ent shall set forth the
particulars thereof. Sec. 83.— Every foreign corporation w ith an
office or place of business in this S tate, except insurance companies,
surety companies, a n a building and loan associations, shall, before
doing business in this S tate, appoint in writing the secretary of the
State and his successors in office to be its attorney, upon whom
ail process in an y action or proceeding against It m ay be served;
and in such writing such corporation shall agree th a t an y 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 th a t
$uch appointm ent shall continue In force as long as any liability
remains outstanding against the corporation in this S tate. Such


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w ritten appointm ent shall be acknowledged before some officer
authorized to take acknowledgm ents of deeds and shall be filed in
the office of said secretary, and copies ce rtified by him shall be suffi­
cient evidence of such appointm ent and agreem ent. Service upon
said-attorney shall be sufficient service upon the principal, and m ay
be m ade by leaving a duly atteste d copy of th e process w ith the
secretary of the S tate or a t his office. Every foreign corporation
doing business in this S tate shall, within th irty days after an increase
or reduction of its capital stock file in th e office of the secretary
of the S tate a certificate substantially like th a t required of'dom estic
corporations organized under the like conditions. The president and
treasurer of every foreign corporation doing business In this S tate
which is n ot required by law to m ake other annual returns in this
S tate, 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 S tate a certificate sim ilar to the certificate required of domes­
tic' corporations (See Corporations), except th a t such certificate
need not give th e nam e of the agent or person in charge of its principal
office upon whom process against the corporation m ay be served.
The secretary shall thereupon record such certificate, in a book k ep t
by him for th a t purpose and shall furnish a certified copy to be
recorded in the office of the tow n clerk of the tow n in this S tate
In which such corporation has its principal office or place of business,
and said town clerk shall record tb e same in a book kept by him
for th a t r purpose. On the fifteenth day of March and Septem ber
the town clerks of the several towns shall report to th e secretary
of the S tate the names of all corporations whose annual reports have
been filed for record during the preceding six m onths, in accordance
with- the provisions of this section, and the secretary shall report
to the attorney-general every six m onths the names of all corporations
which have failed to comply with the provisions of this section, and
th e attorney-general shall collect all forfeitures due under this sec­
tion. Every corporation whose officers shall fail to comply with
th e requirem ents of this section shall forfeit to the S tate $100 for
each failure. T he attorney-general m ay rem it this fine.
F o re ig n J u d g m e n ts . N ot conclusive on question of jurisdiction.
A foreign judgm ent when used by way of defence, is as conclusive
to every intent, as those of our own courts. In an action on a judg­
m ent rendered in another S tate, evidence on the p art of th e defend­
a n t th a t he had no legal notice of the suit and did not appear, is
admissible, although the record of th e judgm ent stated th a t th e
defendant appeared by his attorney. W here th e foreign court
has a peculiar and exclusive jurisdiction, its decree is binding upon
the judgm ent of any other court. Into which the same subject comes
im m ediately into controversy. A judgm ent rendered by a court
in one S tate has no efficacy when it is sought to be enforced in Con­
necticut, unless such court had jurisdiction of th e person against
whom it is rendered, acquired Cither by service upon him of th e
process in the suit, or actual notice to him of th e suit, or a t least by
his having appeared in it, and thus subm itting to th e jurisdiction
of the court. Jurisdiction presumed to have been properly exercised,
if court once had jurisdiction. Notice presum ed of resum ption of
jurisdiction if required by practice In foreign court. A judgm ent
recovered in a sister S tate is a bar to th e further prosecution of an
action pending a t the tim e in this S tate between th e same parties
on the same cause of action. I t m akes no difference th a t th e Judg­
m ent of the sister S tate has been appealed from, and th a t th e appeal
Is still pending, where, by the laws of th a t State, such appeal operates
only as a proceeding in error, and does n ot supersede the judgm ent.
Only such pleas are pleadable to a foreign judgm ent, as are pleadable
when rendered.
F ra u d . All fraudulent conveyances, suits, Judgments, executions,
or contracts, m ade or contrived w ith Intent to avoid any debt or
d u ty belonging to others, shall, notw ithstanding any pretended con­
sideration therefor, be void against those persons only, their heirs,
executors, adm inistrators, or assigns, to whom such debt or d u ty
belongs.
G a r n is h m e n t. (See Foreign A ttachm ents.)
G u a r a n ty C o m p a n ie s. (See S urety Companies.)
H o lid a y s. (See Notes and Bills of Exchange.)
H u s b a n d a n d W ife. In all m arriages contracted after April 19,
1877, neither husband nor wife acquires by force of the m arriage
any right to or Interest in any property held by the other-before
th e m arriage or acquired after th e m arriage, except as to the share
of the survivor in the property of the other as hereinafter stated.
Wife married subsequent to April 19,1877, m ay hold and convey
real estate separate from her husband. Separate earnings of th e
wife are her sole property. On the death of th e husband or wife
the survivor shall be entitled to th e use for life of one-third in value
of alii the property, real or personal, owned by the other a t the tim e
of his or her decease, after the paym ent of all debts and charges
allowed against the estate. The right to such th ird can not be defeated
by will. W here there is no will th e survivor shall take such third,
absolutely, and if there are no children, shall take all of th e estate
of the decedent absolutely to tbe extent of $2,000, and one-half
absolutely of the rem ainder of said estate.
I n ju n c tio n s . Any Judge of any court of equitable jurisdiction
may, on motion, grant and enforee 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 m ay dissolve tem ­
porary injunction granted, by other court. All facts stated in appli­
cation for injunction m ust be verified by oath. Plaintiff m ust give
bond with satisfactory surety, to answer all damages in case of failure
to prosecute to effect, before tem porary injunction can be issued,
unless th e court shall be of opinion th a t tem porary injunction ought
to issue w ithout bond. Injunctions m ay be granted forthw ith, if
the circum stances of the case dem and it; or th e court or judge m ay
cause Immediate notice of the application to be given to the adverse
party, th a t he m ay show cause why such injunction should not be
granted; and it shall be sufficient, on such application for a tem po­
rary injunction, to présent to the coürt or judge the original com­
plaint containing the dém and for an injunction, duly verified, with­
out further complaint, application or m otion in writing. W henever
a tem porary injunction is granted: ip any cause before the return
day thereof, it m ay be dissolved of modified by th e court or judge
who issued it. by any judge of th e court to which the action is return­
able, or by any judge of the superior court; provided a w ritten
m otion for such dissolution shall be prepared before the retu rn day.
Any person wnb m ay ne directly or indirectly Interested in, Or affected
by the granting of any tem porary or perm anent injunction, m ay
appèar and be heard w ith regard to granting or dissolving th e same.
W hen in any action a tem porary injunction has been granted, and
upon final hearing judgm ent shall be rendered adverse to th e contin­
uance of such injunction, either p arty m ay apply to the court rendering
such judgm ent, representing th a t he is desirous of taking the case
to th e suprem e court of errors, and nraying th a t said tem porary
injunction m ay be continued until the final decision therein; and
unless said court shall be of opinion th a t great and irreparable Injury
Will be done by th e further continuance of said injunction, or th a t
said application IS m ade for delay and n ot in good faith, it shall
be the d u ty of th e court to continue said injunction u ntil a final
decision be rendered in the suprem e court of errors. W hen in any
action judgm ent shall be rendered for a perm anent injunction order­
ing either p arty to perform any act, upon sim ilar application to

1566

BANKING AND COMMERCIAL LAWS—CONNECTICUT

th a t above m entioned, a stay of operation of such Injunction, pending
nnai decision of suprem e court of errors, m ay be granted for similar
reasons. The court in which such case is pending m ay, however,
u. in its opinion th e cause of justice shall so require, dissolve said
tem porary iiyunction or remove the stay of said perm anent injunc­
tion while said cause is so pending in the suprem e court of errors.
In so lv en cy . Suspended, owing to U nited States B ankruptcy Act.
I n t e r e s t . Legal rate, in absence of express agreem ent, 6 per cent;
no more -than 6 per cent can be recovered in either case after debt
becomes payable. Express agreem ents in which 12 per cent is
charged are valid and any person m aking a greater charge is liable to
fine an d im prisonm ent. T here is no lim it to th e interest charge
which can b e m ade by any N ational Bank or any Bank or T rust
Com pany, incorporated under the laws of this S tate nor is there any
lim it to th e interest charge on a bona fide m ortgage of real property
exceeding th e sum of five hundred dollars. Special law for pawn­
brokers.
J u d g m e n ts carry 6 per cent interest, b ut are not liens, and executlon m ay be had a t any tim e during the life of both parties. Judgm ent by default m ay be obtained if the defendant m akes no appearance
on o r before the second day of the session. Certificate of judgm ent
m ay be recorded by judgm ent creditor or his assignee in town clerk’s
office, and such judgm ent from th e tim e of filing such certificate shall
constitute a lien upon th e real estate described in such certificate, and
lr such hen be placed upon real estate attached in the suit upon which
such judgm ent was predicated and w ithin four m onths after such
judgm ent was rendered, it shall hold from th e d ate of such attachm ent.
Such hen m ay be foreclosed or redeemed in th e same m anner as
m ortgages upon the same estate, and m ay also be foreclosed by decree
J u r is d ic tio n . (See Courts.)
L ie n s. •' (M echanics’ Liens.) M echanics’ liens for labor or m aten ais furnished in the construction or repair of any building m ay be
filed by original contractor within sixty days after completion of work;
b u t sub-contractor iriust serve owner of building w ith notice of his
intention to claim a lien within sixty days after he shall have ceased
furnishing m aterials or render services and also file his lien .•within
said tim e. P aym ent m ade by the owner of the building to the
original contractor in accordance with contract shall be considered as
m ade in good faith unless the sub-contractor has duly notified said
owner to withhold paym ent. M echanics’ liens are foreclosed same
as real estate m ortgages. Unless foreclosure is instituted, liens
expire two years after filing. (For judgm ent Liens, see Judgm ents.)
L im ita tio n s to S u its. Open accounts and contracts not under
•eal, six years; contracts under seal and promissory notes not negoti­
able. seventeen years. Usual exceptions in favor of m arried women,
minors, lunatics, and those imprisoned. The tim e during which
th e p arty against whom there m ay be such cause of action shall be
w ithout th e S tate shall be excluded from the com putation. Title
to real estate by adverse possession m ay be gained in fifteen years.
1 here is no lim itation against judgm ents but the common law pre­
sum ption of paym ent after tw enty years exists. >
L im ite d P a r tn e rs h ip s . Such partnerships (except banking and
insurance) shall consist of one or more partners, jointly and severally
responsible, as in ordinary cases, to be called general partners; and
one or more partners, furnishing capital to the partnership stock,
whose liability shall not extend beyond the capital so furnished by
them , to be called special partners. Such partnerships shall be
conducted under a com pany name, in which the nam e of one or more
of th e general partners shall appear; and if any special partner's
nam e 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 m ake, and severally sign
and acknowledge before any officer authorized to take th e acknowl­
edgm ent of deeds, a certificate stating the com pany nam e 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 tran sact the partnership business and sign the
firm name, and also th e am ount of capital furnished by each special
partn er an a th e tim e a t which th e partnership is to commence and
term inate; nor until such certificate, and also a certificate of the
am ount actually paid in by each special partner, signed and sworn
to by such of the general partners as are authorized to transact
th e partnership business, shall be filed and recorded in the office of
th e 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 prlm a facie evidence of the m atters therein contained; and the
partnership shall be responsible only for th e acts of th e general part-*
ners designated as specially authorized as aforesaid; and copies or
s&id certificates shall, in like m anner, be filed in every town where
such partnership m ay have a place of business. Term s of such
partnership m ust be published for six weeks In newspaper published
in county where business is to be carried on. Any such partner•h*P fiif'y be renewed by filing a t any tim e before its expiration,
w ith th e town clerk, a sworn certificate of th e general partners,
setting forth the tim e for which said renewal is m ade, w hether the
special capital has been reduced or im paired since the last certi­
ficate filed by said partnership, and If so, to w hat am ount, and by
publishing not less th an once a week for two weeks In a newspaper
published in county, the tim e a t ‘which the said renewed partner­
ship Is to commence and term inate, signed by the partners thereto,
and specifying which are general and which are special partners,
l i the requirem ents concerning original certificate are n ot complied
w ith, or false certificate be made, all special partners shall be liable
as general partners. All advancem ents to the capital stock by the
special p artners shall be in cash and no p a rt of th e capital furnished
by them shall be withdrawn, either in the shape of dividends, profits
o r otherwise, a t any tim e while such partnership continues; except
th a t an y special partner m ay 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 th e capital stock; provided th a t such paym ent shall only be
m ade o u t of the net profits actually earned by such partnerships
during th e year for which such paym ent is m ade. No special partner
shall under an y circum stances be considered a creditor, or allowed
to claim as a creditor. No special partner shall be joined as a party
in an y action by or against such partnership uhless liable as a general
partner.
M a rrie d W o m e n . (See Husband and Wife.)
M o rtg a g e s of real estate are executed, acknowledged, and recorded
In th e sam e m anner as deeds, and are foreclosed by strict foreclosure
or by a decree of sale. Chattel mortgages to be good against third
parties, where th e m ortgagor retains possession, m ust be executed,
acknowledged, and recorded as m ortgages of land, and can only be
m ade of th e following described personal property—w ith or w ithout
the real estate in which the same is situated or used—nam ely;
m achinery, engines, or Implements situated and used in any m anu­
facturing or m echanical establishm ent; m achinery, engines, imple­
m ents, oases, types, cuts, or elates situated and used in any prin t­
ing, publishing, or engraving establishm ent; household furniture in a
dwelling house used by th e owner therein in housekeeping; hay
and tobacco in the leaf in an y building. Piano, organ, melodeon, and
an y m usical in stru m en t used by an orchestra or band. Brick burned
or unburned, in any kiln or brickyard. H otel keepers m ay m ort­
gage th e furniture, fixtures, and o ther personal chattels contained


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?“ d
ln J55e^ ° .rels occupied oy them or employed in connects»
therew ith. Chattel mortgages are foreclosed by sale u n a « «22?
of court. In all chattel mortgages there m ust be a particular descrini
tion of each article of personal property. Judgm ent for defieae?£
after sale, perm itted.
l'lcno”
N o ta rie s P u b lic hold office for two years from first day of
of year in which commissioned, unless comm ission is soon«?
revoked by governor. May exercise their function a t any place m
S tate. May take acknowledgments, adm inister oath, take deDositinn
subpoena witnesses to give deposition. The authority and offleuf
acts of any notary m ay be certified to by the clerk of the sunertoi
court of th e county ln which he resides, except in New London Countv
where the certification is m ade by th e clerk of the court of common
picns.
N o tes a n d B ills of E x c h a n g e . Negotiable Instrum ents Ant
now In force.
P ow ers of A tto r n e y . Where a deed is executed by a Dower nt
attorney it is recorded with the deed. Powers of attorney to convey
real estate m ust be executed and acknowledged In the m anner reaulred
Cor the execution and acknowledgm ent of the conveyance itself.
P r iv a te B a n k s . (See end of S tate Banks and T rust Companies.)
P ro b a te L aw . (See Adm inistration of E states, Appeals, Assignments and Insolvency. Collateral Inheritance Tax, Courts, Descent
and D istribution of Property, H usband and Wife, and Wills.)
*
P ro te s t. (See Notes and Bills of Exchange.)
R e co rd s. W arranty, mortgage, quitclaim deeds m ust be recorded)
in office of town clerk in town where land lies, also assignments of
m ortgage, conditional bills of sale, chattel mortgages, assignments
of future earnings. Certificate of trade-m ark to be filed for record
in office of secretary of S tate. Certificate of unsatisfied Judgment
to be filed for record ln town clerk’s office. (See Conveyances, Insur­
ance Companies, Limited P artnerships, Judgm ents, etc.)
R e d e m p tio n . (See Mortgages.)
R e p le v y . Replevin lies for goods wrongfully detained, in which
the plaintiff has a general or special property with right to immediate
possession. A w rit of replevin can not Issue except upon an affidavit
In which the affiant states the true value of the goods to be replevied
and th a t he believes th a t 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 p rip erty . This
bond or recognizance m ust be signed by the obligors in presence
of a t least one witness other than the authority taking the recogmzance.
S ale o f R e ta il B u sin e ss. Any person who m akes it his business
to buy commodities and sell the same in small quantities for the
purpose of m aking a profit and desiring to sell the whole or a large
p a rt of hjs stock in trade, m ust file a notice of such intention in the
town clerk’s Office not less th an ten nor more than th irty days
prior to such sale.
Sales. Uniform Sales Act passed in 1907.
S ervice. Service of a writ of summons In case of a resident is
made by reading it and the com plaint accom panying It in the defend­
ant s hearing, or by leaving an attested copy in the defendant’s hands
or a t hia usual place of abpde: in case of a non-resident, the several
courts, other than courts of probate, and the lodges, clerks, and
assistant clerks thereof, or any county commissioner, in term time
or in vacation, m ay, except where It is otherwise specially provided
by law, m ake such orders as m ay be deemed reasonable, ln regard
, to the notice which shall be given of th e institution or pendency
of all com plaints, writs of error and appeal from probate, which
m ay be brought to or pending in a n y court, when the adverse party,
or an y person so Interested therein, th a t they ought to be made
parties thereto, reside out of th e S tate, or when the nam es or resi­
dences of an y such persons ln interest are unknown to the party
instituting the proceeding; and such notice having been given and
proved shall be deemed sufficient service an d notice.
S ta te B a n k s a n d T r u s t C o m p a n ie s . A reserve fund of 15 per
oent of aggregate of deposits m ust be held and m aintained in the
banking office, of which 4-15 m ust be gold and silver coin, demand
obligations of the U nited States or national bank currency. The
rem ainder of said reserve fund m ay consist of balances subject to
dem and d raft with-reserve agents, which are members of the clearing
house associations of New York, Boston, Philadelphia, Chicago,
or Albany; or national banks, sta te banks, or tru st companies, located
in Bridgeport, New Haven, or H artford, and of railroad bonds which
are legal investm ents for savings banks. No new loans or discounts
m ay be m ade when th e reserve is below 15 per cent. Bank commis­
sioners m ay apply for appointm ent of a receiver when the reserve
falls below 15 per cent after th irty days’ notice
No one person, corporation or firm m ay borrow more th an 10
per cent of th e am ount of the capital stock paid in and surplus undi­
vided profits combined, of any sta te bank or tru s t com pany. This
does not apply to collateral loans. P enalty of $3,000 for violation
of this law. P aper of executive officers or clerks m ay not be dis­
counted. Loans to parties outside the S tate can only be made when
the loans and discounts in the aggregate am ount to one-half of the
capital stock.
Books of a bank m ay be exam ined by stockholders under certain
conditions.
Three-fourths of the directors m ust be residents of the State. No
direotor m ay be obligated to a bank or tru st company in an amount
exceeding 5 per cent of the capital actually paid in and surplus undi­
vided profits combined. This does n ot apply to loans secured by
collateral.
Cashier’s bond of $10,000.
At least five reports, verified by oath, m ust be m ade each year
to th e bank commissioners, exhibiting in detail th e resources and
liabilities of th e bank or tru st com pany, ten days after receipt of
request therefor from the bank commissioners, which shali be published
in a newspaper in the county where the bank or the tru st company
is located. P enalty of $10 for each day of delay in transm itting
report.
Words “ bank,” “ tru st,” or “ savings” m ay only be used by banks,
tru st companies and building and loan associations incorporated by
the U nited S tates or by th e general assembly, b u t this shall not apply
to firms or Individuals doing business as private bankers or brokers
under their own names, who deposit with the S tate treasurer a bond
•of $10,000, or acceptable securities of th a t am ount for the protection
of customers from styling them selves bankers in th e conduct of their
business. Banks and tru s t companies m aintaining savings depart­
m ents m ust invest deposits according to th e laws of th e S tate con­
cerning Investm ents of savings banks, and m ust m ake sworn state­
m ents to th e bank commissioners on October 1st in each year and
oftener if required by th e commissioners, of th e am ount of such
deposits and th e securities in which th ey are invested. A S tate Bank
or T rust Com pany m ay be incorporated under General Laws as pro­
vided in C hapter 194, Public Acts of 1913.
S u its. (See Actions.)
S u re ty C o m p a n ie s . Any corporation w ith a paid-up capital of
not less th an $250,000, incorporated and organized for th e purpose of
transacting business as surety on obligations for nefsons or corpora­
tions, on comnlyinsr with certain requirem ents of law m av be accepted
as surety upon the bond of any person or corporation required by

BANKING AND COMMERCIAL LAWS—DELAWARE
the Jaws of this S tate to execute a bond. E very foreign corporation
before transacting any business in this S tate m ust deposit w ith the
Insurance commissioner a copy of its charter or articles of association,
and sworn statem ent of th e condition of its business. T he insurance
commissioner m ay th ereafter issue to such com pany a license to do
business in this State. Such company m ust appoint th e insurance
commissioner its agent on whom process m ay be served. Such com­
pany m ust file annually on or before M arch 1st, w ith the insurance
commissioner, a statem ent of th e capital of such com pany and its
Investments and risks. An annual license is granted if annual sta te­
ment be satisfactory. Local agents m ust procure certificates of
au th o rity to a c t as agent from th e insurance commissioner. The
Insurance commissioner m ay also a t any tim e examine the
affairs of an y surety com pany doing business to the State. A reserve
fund m ust be m aintained equal to 50 per cent of the gross am ount
of premiums received on business in force. No such com pany can
incur on behalf of any one person or corporation a liability for an
amount larger th an one-tenth of its paid-up capital stock and sur­
plus without giving collateral security.
T axes. Land m ay 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 y ear in which to redeem, by paying the purchase
money, with 12 per cent interest. Bonds, notes, or other choses
in action, except bonds an d notes secured by m ortgage on real estate
situated in th is State, m ay be exem pted from all local taxation by
laying to th e S tate a ta x of 2 per cent on th e face am ount thereof
or five years, or a t th e option of th e holder thereof for a greater
or less num ber of years a t a proportionate rate. Inheritance taxes
are levied on all property within Connecticut possessed by any resi­
dent of Connecticut a t th e tim e of his decease, and all tangible prop­
erty within Connecticut possessed by a non-resident a t th e tim e of
his death which passed by gift, to take effect a t death or by will to
any person,' corporation, voluntary association or society, with exemp­
tions In favor of charities and on certain particurla kinds of property.
Rates of th e tax are 1 per cent of th e value of all property in excess
of $5.000 passing to parent, husband, wife or child up to $100,000,
with graded increases; i per cent on property so passing to wife or
widow of a son, husband of a daughter, or brother or sister of the
decedent, up to $100,000; 5 per cent of th e value of all property in
excess of $500 so passing to any person other th an those hereinbefore
mentioned, up to th e am ount of $100,000; 6 per cent above th a t
amount.
T ra n s fe r o f C o rp o ra tio n S to c k s. (See Corporations.)
T ru s t C o m p a n ie s . (See S tate Banks and T rust Companies.)
W areh o u se R e c e ip ts. Uniform W arehouse Receipts Act passed
in 1907.
W ills. All persons of the age of eighteen years, and of sound
mind, m ay dispose of th eir estate (real or personal) by will. No
devise, except for public and charitable uses, or for the care of ceme­
teries or graves, shall be made to an y persons b u t such as are a t
the tim e of the death of th e testa to r In being, or to .their immediate
Issue or descendants. Wills m ust be in writing, subscribed by the
testator, and attested by three witnesses, each of them subscribing
In his presence, b u t th ey will be effectual here if executed according
to the laws of th e S tate or country where executed. If, after the
making of a will, th e testa to r shall m arry, or if a child is bora to the
testator, and no provision is m ade in the will for such contingency,
such m arriage or birth shall operate as a revocation of such will.
A will or codicil is otherwise revoked by burning, canceling, tearing,
or obliterating it by th e 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 th e will is otherwise legally attested, or unless
the devisee or legatee be an heir to the testator. Wills are proved
and estates settled in th e probate court in the district where the
deceased resided. Wills of non-residents owning property in this State
may be proved by filing exemplified copies thereof in district where
property is located. Such course should always be taken in order to
pass good title to real estate;
W o rk m e n ’s C o m p e n s a tio n A ct. Passed in 1913.

{

SYNOPSIS OF

T H E L A W S OF D E L A W A R E
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by T ow nsend & T o p k is , A ttorneys a t Law, W ilmington.

(See Card in Attorneys’ List.)

Acknowledgm ent. (See Conveyances.)
Actions. Suit may be commenced by capias, summons, and
(where defendant is non-resident) by attachment of property. Sum­
mons in justice’s court may be issued returnable In four days from
date of service, or may be made returnable forthwith, upon plainr
tiff filing an affidavit that there is danger of his losing the benefit
of his process by delay. In superior court the summons must be
served personally on debtor before court sits, or by leaving a copy
of the summons at his usual place of abode, in presence of some
white adult person, six days before court sits. Service by publi­
cation allowed in the court of chancery only.
Affidavits may be administered in the State by the chancellor,
any Judge, Justice of the peace, or notary public; and out of the
State by any official duly authorized to take acknowledgments of


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Federal Reserve Bank of St. Louis

1567

deeds, etc.; b u t before» a n o tary publlo is preferable; The affiant
m ust sign the affidavit.
A s s ig n m e n ts a n d In s o lv e n c y . There is a dom estic insolvent
law providing for a full surrender and equal distribution of all property,
b u t it is very seldom used, and there is no provision in th e a c t for
the discharge of th e debtor upon his m aking an assignm ent. The
assignee m ust file a schedule of property assigned within th irty days,
and two appraisers are then appointed by th e chancellor. Assign­
m ents m ust be for th e benefit of all creditors alike.
A tta c h m e n ts . D om estic attachm ent m ay be issued against an
Inhabitant of this S tate, after a return to a summons o rcap ias issued
ten days before the return thereof; of non est inventus, and proof
of cause of action; or upon th e filing of an-affidavit “th a t th e defend­
a n t is ju stly Indebted to the plaintiff in a sum exceeding $50, and
has absconded from the place of his usual abode, or gone out of the
S tate w ith in ten t to defraud his creditors, or to elude process, as
is believed." The writ directs the attachm ent of property and
summons of garnishees. A ttachm ent m ay be dissolved on entering
security to satisfy any judgm ent to the ex ten t of the propertyjattachea
th a t m ay be recovered against th e defendant. On return of a tta c h ­
m ent th e court appoints three persons as auditors of the claims of
creditors; th e creditor attaching is allowed a double share for his
diligence, n ot to exceed full am ount of debt. Any creditor n o t duly
presenting his claim receives no share in th e distribution. Plaintiff
is n ot required to give security. Wages are exem pt from a tta c h ­
m ent in New Castle County except for board or lodging. Foreign
attachm ent m ay be Issued against a n y person n o t an Inhabitant
of th e S tate after a return of non est as in dom estic attachm ent,
or upon affidavit being m ade “ th a t the defendant resides o u t of th e
State, and is ju stly indebted to the plaintiff in a sum exceeding $50.”
Foreign attachm ent m ay also issue against a foreign corporation,
b ut in this case the am ount of th e real debt m ust be particularly
specified in the affidavit, and m ust exceed $50. Unlike dom estie
attachm ents the plaintiff in foreign attachm ents has th e benefit of
his own discovery and does not share w ith other creditors. I t is
similar to domestlo attach m en t in all respects except as to appoint­
m ent of auditors and distribution among creditors. The court or
any judge upon petition m ay investigate an y allegation in affidavit,
except as to the am ount of the debt, and dissolve th e attach m en t
if sufficient ground be not shown. Foreign attach m en t is otherwise
dissolved by entering special ball.
B a n k s . There is no general banking a ct and b u t one S tate bank,
which was chartered by th e legislature in 1807. Banking companies
can not be formed a t present, except by special act of th e Legislature;
The holders of stock are taxed a t th e rate of one-fourth of one per
centum on th e cash value of each share of capital stock. There
have been recently several tru st companies formed in the State,
either by special act before th e 1897 constitution, and by general
corporation act since, which have been granted banking powers
by special statute. Banks and tru st companies are now subject to
examination and inspection by insurance commissioner.
B ills arid N o tes, Acceptance should be in w riting on the billl
All checks, notes, drafts, or bills, foreign or inland, payable w ithout
tim e or a t sight, are due on presentm ent w ithout grace.
C h a tte l M o rtg a g e s m ust be accom panied w ith an affidavit th a t
the m ortgage is m ade for the bona fide purpose of securing a debt,
and n o t to defraud creditors, and if recorded w ithin ten days froffi
the acknowledgment thereof, is a valid lien for five years on persona!
property, the possession of which m ay rem ain in th e m ortgagor.
C la im s A g a in s t E s ta te s o f D ece ased P e rso n s 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. R ent for not more th an one year, either
growing due or in arrears. 5. Judgm ents and decrees in equity
against deceased. 6. Recognizances, mortgages, and cither obliga­
tions of record. 7. Obligations and contracts under seal. 8. Con­
tracts under hand for the paym ent of money, delivery of goods,
wares or m erchandise. 9. O ther dem ands. A dm inistration 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 m ust be given for an am ount double the value of
the estate. Notice m ust be given of claims against the deceased
within six m onths from granting of letters (except claims of record),
or executor or adm inistrator is protected in paying debts of a lower
grade. One year is allowed for settling the estate, and until thé
expiration of th a t time, he need n ot m ake distribution, nor is he
chargeable with interest on the assets in hand. He m ay be removed
upon sufficient cause. L etters granted in other states and produced
under the seal of the officer or court granting the same, is com petent
au th o rity for him to a c t in th is S tate.
C o n tr a c ts are Joint and several, unless otherwise expressed.
C o n v e y an ces o f R e a l E s t a t e m ust be under seal (a scroll is
sufficient), and should be executed before one witness a t least. Deed
m ay be acknowledged out of the S tate before any consul-general,
consul, or commercial agent of the U nited States, duly appointed
In any foreign country a t the places of their respective official residence;
before the judge of any district or circuit court of the U nited S tates,
or the chancellor or any judge of a court of record of any state, terri­
tory, or country, or the m ayor or chief officer of any city or borough,
and certified under the hand of such chancellor, judge, m ayor, or
officer, and the seal of his office, court, city, or borough, by certificate
endorsed upon or annexed to the deed; or such acknowledgm ent
or proof m ay be taken in any such court and certified under the hand
of the clerk or other officer of said court, and the seal of said court
in like m anner. In case of such certificate by a judge, th e seal of
his court m ay be affixed to his certificate, or to a certificate of a t ­
testation of the clerk or keeper of th e seal. Such acknowledgm ent
m ay also be taken by any commissioner of deeds for this S tate, or
by a notary public of an y sta te or territory. Wife m ust join in deed
to bar dower, and husband to b ar curtesy. A deed by a corpora­
tion m ay be executed and acknowledged by th e president or other
presiding officer duly authorized by resolution of the directors, trustees,
or other managers, or by th e legally constituted atto rn ey of such cor­
poration under its corporate seal. Deeds must. be recorded within
three m onths after sealing and delivery, to avail against creditors,
mortgagee, or bona fide purchasers, w ithout notice.
C o rp o ra tio n s. General Corporation Act for all purposes other
th an banking. Each stockholder is individually liable for th e am ount
of capital stock not paid in in proportion to th e am ount subscribed
by. him. Corporations of other states m ay be sued in this S tate,
and the property of the same found here m ay be seized by attachm ent.
All foreign corporations m ust file w ith th e secretary of state, sta te­
m ent of assets and liabilities, and the nam e of its authorized agent
upon whom process m ay be served; m ust pay a S tate ta x of $50,
and fees of secretary of state (this S tate ta x is paid b u t once) m ust
file w ith the prothonotary of each county the nam e of authorized
agent upon whom process m ay be served.
C o sts. Non-resident plaintiffs m ay be required to give security
for costs.
C o u rts. Terms and Jurisdiction. The different courts of the
S tate are as follows: Supreme court; regular term a t Dover th ird
Tuesday in Ju n e and January. Court of chancery and orphans,

1568

BANKING AND COMMERCIAL LAW S—DISTRICT OF COLUMBIA

jo u rt; regular term s, New Castle County, a t WUmlneton ori! tv,«
fourth Monday In March and second Monday In Septem ber- K ent
County, a t Dover, third Monday In March and tWrd Mondav ?n
Sussex County, a t Georgetown, second Monday In March
and first Monday In Septem ber. Superior court, and court of general
sessions are held In New Castle County a t Wilmington thb first §fon^ n tim h * r11U£ r3K- M.a *£h’ J_une- and November and third Monday°?n
K ent County a t Dover. tbe h rst Monday in Ju ly and
the third Monday in February, April, and October, and In Sussex
County th e first Monday in February, April, and October and last
J uftf J,n Georgetown. Oyer and term iner m eets on call
.J.nd&es. Jurisdiction—-The superior court has Jurisdiction In all
civil cases, b ut if suit ,be brought for less th an $50, costs will not
be recovered. Justice’s Jurisdiction. $200.
ot
p any suit pending, th e prothonotary. on appli­
cation, enters a rule commission on th e p a rt of the applicant to anv
commissioner of the S tate or other person. The commission issues
on ten days notice of interrogatories filed. Exceptions to interroeahefnre
be
beiore ‘ he commission issues, and are6 heard
a ‘ chambers. Exceptions to th e execution m ust be
a* c l e i k ^ ^ ^ T h a5^i 4ÎiÎ Ck publlcatl0?- If the commissioner employ
a
T
h
e
clerk by me employed in taking, writing, tranaild , en grossing;the said depositions, having first duly taken
thereof*” asslgned to tb e 8ald commission according to the tenor
i l o n 8 5 Ie ft llen upon personalty from the tim e the sheriff
«ceW ed th e w i t . if actual levy be m ade within sixty days therelien rem ains in force five years. Execution
k®- Issued
flv2
after date of Judgm ent. An execution
a
a lle? ‘l om tim e w rit is received, if levy be m ade
of Wld‘ rem aIns for two years. Execuot i ssue after ,‘ hree years w ithout revival. Goods and
chattels of a ten an t are liable to one year’s rent in preference to
*b« e l u t i o n . There is no redem ption on property lofd undl?
execution or m ortgage. In New Castle County wages for a m onth
Sf sIx'mnnthH0!. eeum m tjons are preferred to th e execution. S tay
Î É Ë » ! of r^ ? r^ upon Judgm ents recorded
3B£J5s e ? 01 ajndavit of defence, provided security be given w ithin
^y s ft^‘er Judgm ent. In justice’s courts defendant m ay have
g iv in g securtty.y ' UP° n pleadIne his freehold: uine m onths’ stay upon
E x e m p tio n s . No hom estead law. Fam ily pictures, bible and
library; lo t in burial ground and pew in church; all wearing apparel *
foW
M County;
1®8’’ t00ls
°J tm d e n ot to elc e e d T so
«? vKentm o?s??V nn New Castle
and
to th e head of a familv
sn6 » Castle County $200 of personal property and In K ent County
?n 5S i i « « 8 STv,? of household goods only. No additional exem ption
In Sussex. The provisions of the exem ption law extend and aoplv
*5 ? pe^8011 dying and leaving a widow, giving and securing to ^ u c ?
if 1» ^ tîhew i ^ î heueflt of exem ption th a t her husband would have had
x
from execution attach m en t in New Cas-

ReaJ Property are executed and acknowledged in»*
2rtÎSr* Îeeds‘ _jTbey Tbecome a lien from the time they
with the recorder. Upon foreclosure of same there is no red*mî5î®d
®£,P5°Perty. A purchase money mortgage should be recorded^îli®
thirty days to avail against a subsequent innocent holder.
^tohi®
. F«-oof of Claims. The fuU Individual names of plaintiff« ««d®f,efndants. together with style of doing bustaess, must be staSb
or if a corporation, the laws of what state under which incornnra+îâ’
One of the plaintiffs, if a partnership, or the t t S s u r e ? ^ « ^
of a corporation, must make affidavit to the amount claitnpd ®fts^ ,er
anjtem ïted copv of the cause of action atteched thireto’ *1 ?%
ftd^Isable to have the affidavit made before a notary public thouJa
it may be made before others. (See Affidavit.)
* y ouo’ inou*»
Protest. (See Bills and* Notes.)
Replevin. The writ Issues out of the superior court tn
Pffigegblcm of goods unlawfully taken or unlawfully detained0
affidavit is required, but before the offleer to whom lt is d h e e ^
enter
11dh+
enter ^Intn1
tato 1hbond
to plaiatIff„or
such officersome
in a substantial
penalty of person
double for
thehimmMt
effeet°ete
t0nbf
r®
ple.
v
lnedconditioned
to
prosecute
the
suttgood«
with
effect, etc. Defendant may give counter bond and retain the
may be served on the defendant by stating th f suh:
writ or
Itp b,lm personally at any time before the return of the
IWfaflfeby leaving a copy of it at his usual place of abode ta th*
some, adult person six days before'the return thereof*
re>a?dteg
seJ ved
theofficer,
president
or head
if
residing in the State, maJ
and i#e
if not,
onon
any
director,
or officer,
mansuror
To
«««S2ratl°? or duly authorized agent:named for said serviras
service may be had by publication under order of the
a justice service ¿ u st bé personal tf forthwith
otherwise four days must intervene before hearing.
*
lftld and Imposed by the levy court of a county or bv th«

‘galMt b,m S S W S Ü S JS
4*? person of the age of twenty-one years or upward
? aT make a will as well of real as personal estate'
must be In writing and signed by the testator, or by some
J*®® subscribing the testator’s name in his presence and by his
express direction, and attested and subscribed^ in his oresenra hv
‘wo or more credible witnesses, or it shall be void? A Æ
th» ♦»«rQi-?-0T2di^ hfiore the register of the county in which
a!t?i ‘?®‘ator resided at the time of his death. A nuncupative
i ^ t h i Ff«^°*nal.es£ftte, not.amounting to over $200 and pronounced
by ‘be testator ta his last illness in the presence of two or more wlt5e®®e® *8 valld if reduced to writing and attested by said witnesses
n?4th» n?ife+days
Children bom after the date of the will

?. S'v w a 'î « A ï ï Æ r ,bare ot tbe

£ 5 Æ s v « M „ ,ï s . i - æ r °r
°1 g2odS vo,d as t0 th ,rd Parties, unless for a valua ftnd Ü S Possession thereof be actually delivered
ÎS » ?e* i enÎ eeii. ^ Promise to pay th e debt, default, or m iscarriage
of an o th er to the ex ten t of ,$5 is binding if proved by the oath of the
an«1«
a mo u n t between $5 and $25 m ust be proved by
one credible witness or some m em orandum In w riting signed hv th«
person to be charged therew ith; for an am ount ex ce!d in ? $25 there
p arty to % e T h a rïe T th e « v rt“h .0r Pr° mlSe 111 ^ ^ g signed by the
garnishm ent in New Castle County except for board or lodgtag.
o.P?*ILd ft,y8' J ie8a1' , Ja n u ary 1st. F ebruary 12th. F ebruary 22d
Good F riday, M a y 3 0 th , J uly 4th, first M onday in Septem ber T hanksCountvD ia i f legal
feni , Choliday
^
maffalls
’nand
^day the
afternoon
in is
New
Castle
xr««
on SQtu
Sunday
next day
observed
n ^ ° î , I^ 1^ iP^'per Halims due on legal holiday is due and payable on the
next preceding secular day; if falling due on S aturday half-holiday if
tag secular^iay>r payirient before noon, is n ot due tili th e next succeedH o m e s te a d .

There is no hom estead law in Delaware.

r a t2 ls 6 Per cent. A ny person who takes more
£*£
‘ be loan of m oney shall forfeit and pay to any one Suing
a ®?m equal to th e m oney loaned, one-half for the use
of th e S tate, and th e other for the p a rty suing.
oi c.o urt? of « c o rd are liens upon all real estate of the
r ^ r i J i hL
y whore judgm ent is entered from their date, for
S f f Æ
f S h and m ay be revived and kep t alive and a lien
py “ KJ-KA. or agreem ent before expiration of ten years from date of
®utr y-. This lien m ay be extended into either or both th e other
mernsdn ori^l8^ 6?«8 £an °ftly be obtained in this State upon judgother states by suit, upon a certified copy of the record of
M av J2 fi Sf 7 ^ fc
»under the Act of Congress plss^d
®’ 1790. Transcripts of judgm ents recovered before justices
Ueis o ^ rcaV S f i t f>
ba ffntered “ the superior court and thus be made
nf d p f S i S e s t a t e a f t e r execution and return by Constable on goods
p a y m ^ t an t Satisfaction m ust be entered within sixty days after
j o t under hand and book accounts three
f ’^ blü® aild no‘ es under hand six years. Judgm ents and specialtvir Pre8um ed to have been paid after the lapse of tw enty
troftS’
j presum ption m ay be overcome by proof to the conJudgm ents m ust be renewed w itnin ten years in order
rii7? i^ Sfor.Te-tb f3lr ien ftft reai estate. T he sta tu te does not begin to
^such
h m
r r anner
i a ^ r ° tth
fi1?a?t IyheresidelltK
come into
e S
in
m ay bedebtor
servedftntil
w ithhe process,
andth if
a tate,
dphtnr
«
o * of ac?lon has accrued, the tim e of his absence °s
e x L tX ? ? ^nA,1«°nwoe
vf.08:nl.
55ances
sheriffs’,
inistrators’,
or
executors
bonds, within
six
yearsof,frorrf
date. adm
Bond
of guardian
within three years from th e determ ination of guardianship.
«* M a rrie d W o m en retain their real and personal property owned
at:m arriag e or received from any person other th an the husband
receive wages for th eir personal labor, and prosecute and defend
suits for _preservation and protection of th eir own property as if
unm arried, and th e rents, issues, and profits of their separate estate
are n ot controllable by the husband. Dower; The widow is entitled
*° «ûK
epiidlJ d ? a rt of .ft11 the lands and tenem ents whereof her husband
apy tlrue during her marriage, unless "She shall have
c5i
for ,and during the term of her natural life.
If her husband die w ithout issue or the children oi issue she takes a
M M ? * ! ? ? . ° f Î thlrd p a rt of tbe real estate. A m arked women
ertvh hoth
ypars and upw ard m ay dispose of her property, both real and personal, by will, w ithout the Written consent
nd’
subject to his ri^ht of courtesy Two o? mo?e
in t«i?SpteHa o«tufCesf a ry i,i0u a , Yid ‘ H usband and wife m ay testify
theasultIVl1 actions ln which either or both are or m ay be parties to


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Federal Reserve Bank of St. Louis

ill

S Y N O P S IS

OF

T H E L A W S OF
T H E DISTRICT OF COLUMBIA
* RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S

Prepared and Revised by J ohn B. L arnek . Esq. A ttorney a t Law,
Washington Loan & T rust Bldg., W ashington.
Tbe deed of a corporation shall be executed
Dy having the seal of the corporation attached and being signed with
Lbe “ ift® PI{‘he com oration, by its president or other officer, and shall
«
+
ft™3^® deftd of the corporation by an attorney
‘ba‘ Purpose, by a power of attorney embodied in the
„
or by one separate therefrom , under the corporate seal, to be
annexed to and .recorded with the deed.
r
,of D eeds. W hen any deed or contract under
18 t0 be, acknowledged out of the District of
h»
witbin. tbe United States, the acknowledgment may
rhai?r5nnrb« f ° i \ + n/
° i a court of record and of law, or any
f^riV?ri»i
Judf e o r justice of the suprerhe, circuit, or
tb ft Vi11^ d S‘ates, or any justice of the peace or
1Provided th a t the certificate of acknowledgment
a*°[esftld1\ ft’f-de by any officer of a S tate or Territory, hot having a
accompanied by a certificate of the register, clerk, or
‘h at the officer taking said acknowledgment was
°®,cer he professed to be. Deeds m ade in a foreign counbefore any judge or notary public, or before
n??hierr1i ? i + * e^ation or consular officer or acting consular officer
‘he United States as such consular officer is described in section 1674
®‘a‘ utes of the United States, and when the acknowl«clgtrriexit is m ade before any other officer other th a n a secretary of
offlcer °J acting consular officer of the United
cia character of the person taking the acknowledgment
?haft be certified in the jnanner prescribed as to deeds o ut of th e Dis‘ftjc‘
Columbia but within the "United S tates. No deeds of conveyance of either real or personal estate by individuals shall be exe­
cuted or acknowledged by attorney.

BANKING AND COMMERCIAL LAW S—PISTRICT OF COLUMBIA
A ctio n s. The common law forms of actions are used except as
modified by statu tes.
.
Administration., T he probate court, a special term - of the
supreme court of th e;D istrict of Columbia, has exclusive jurisdiction
of the settlem ent of estates. A w ritten petition stating th e facts
in the case m ust be filed w ith th e register of wills. This petition is
acted upon by a justice of th e supreme court of the D istrict, who sits
daily. AH executors and adm inistrators and guardians are required
to give bond w ith security to be approved by the court. The testa to r
may waive th e giving of bond, b u t the court always requires a bond
sufficient to cover th e debts and legacies of the deceased not to exceed
double th e value of th e personal estate. By aet of Congress, certain
trust companies incorporated thereunder m ay act as executor or ad­
ministrator w ithout bond, and corporations having power- under their
charters m ay a ct as sureties in all cases where individuals can. Credi­
tors m ay be barred in thirteen m onths provided th e required notice
is properly published. P robate court m ay order sale of real estate to
pay debts, in case personal assets are insufficient. Assets of non resi­
dents in D istrict of Columbia are subject to claims of local creditors
for one year after death.
A ffid av its. Affidavits for use in the D istrict of Columbia should
be taken before a justice of the peace, notary public, judge of any
court of record, or a U nited S tates commissioner.
A liens. Aliens m ay hold real and personal property in th e D istrict
of Columbia, and m ay acquire real estate by descent. Alien corpora­
tions are prohibited from acquiring real estate. Corporations of which
over 50 per cent of th e stock Is or m ay be owned by persons or asso­
ciations n ot citizens of U nited S tates can n ot acquire or own real
estate in D istrict of Columbia.
A p p eals. Appeals will lie from the municipal court to the supreme
court of th e D istrict of Columbia where more th an $100 is Involved,
and In actions for th e recovery of possession of real estate. Appeals
may be tak en from th e suprem e court of the D istrict of Columbia to
the court of appeals of th e D istrict of Columbia. Appeals m ay be
taken from th e court of appeals to the supreme court of the U nited
States:
1. In cases where jurisdiction o f trial court is in issue.
2. Prize cases.
3. C onstitutional questions or treaties involved.
4. W here validity of any a u th o rity exercised under U. S., by an
officer is in question and
5. C onstruction of any law of U. S; is draw n in question.
A rre s t. There is no im prisonm ent for debt in th e D istrict of
Columbia. The court has the power to imprison for non-paym ent of
alimony in divorce cases.
A tta c h m e n ts m ay issue a t institution of suit or subsequently,
upon affidavit of plaintiff or his agent, supported by th a t of one or
more witnesses, showing th e grounds of his claim and right to recover,
and th a t 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 th a t the debt was fraudu­
lently contracted. Creditor m ust give bond, w ith approved surety
or sureties, to be approved by th e clerk, in twice the am ount of his
claim for costs and dam ages if attachm ent is wrongfully sued out.
B ills a n d N o te s. The common law of England relative to bills
and notes, except where changed by sta tu te, governs all cases in which
they are involved. A law similar to the New York Negotiable Instru­
ments Law is now in force in th is D istrict. (See Legal Holidays and
Protest.)
C h a tte l M o rtg a g e s . No bill of sale or mortgage or deed of tru st
to secure a deb t of any personal chattels whereof the vendor, m ort­
gagor, or donor shali rem ain in possession, is valid and effectual to
pass th e title herein, except as between th e parties to such instru­
ment an d 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 acknowledgm ent recorded In the same m anner as deeds
of real estate; and as to th ird persons not having notice of it, such
Instrum ent shall be operative only from th e tim e w ithin said ten
days "When it is delivered to the recorder of deeds to be recorded.
C o lla te ra ls. The holder of the note as collateral security for debt
stands upon th e same footing as the purchaser and m ay m aintain suit
thereon for his own benefit. The collateral pledged m ay be sold In
accordance w ith th e term s of th e collateral note which usually pro­
vides th a t th e collatéral m ay be sold upon non-paym ent of the prin­
cipal of th e note, eith er a t public or p rivate sale, and In such cases the
purchaser a t an y such sale obtains a valid title to the collateral sold.
C o n tr a c ts . Every contract and obligation entered into by two
or more persons, w hether p artners or m erely joint contractors, whether
under seal or not, w ritten or verbal, and w hether expressed to be
joint an d several or not. is for th e purposes of suit deemed joint and
several. On th e death of one or more of such persons, his or their
executors, adm inistrators, or heirs are bound by said contract in the
same m anner and to th e same extent as if the same were expressed
to be Joint and several. In actions ex contractu against alleged joint
debtors it is n o t necessary for th e plaintiff to prove their joint lia­
bility in order to m aintain his action, b u t he is entitled to recover,
as In actions ex delicto, against such of the defendants as shall be
shown by th e evidence to be jointly indebted to him, or against one
only, if he alone is shown to be indebted to him, and judgm ent will
be rendered as if th e others had n ot been joined in th e suit. Any of
several jo in t debtors, when their debt is overdue, m ay m ake a separate
composition or compromise w ith their creditors.
C o rp o ra tio n s. Any three or more persons m ay form a company
for th e purpose of carrying on any enterprise or business which m ay 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 m ay have a perpetual existence.
No such com pany is authorized to tran sact business until 10 per cent
of th e capital stock shall have been actually paid In, either In money
or property a t its actu al value; and the recorder of deeds, before
filing an y certificate of incorporation, m ust be satisfied th a t the entire
capital stock has been subscribed for in good faith. All of th e stock­
holders of such com pany are severally and individually liable to the
creditors of th e com pany in which th ey are stockholders for the unpaid
am ount due upon th e shares of said stock held by them respectively,
for all debts and contracts m ade by such com pany, until the whole
am ount of capital stock fixed and lim ited by such com pany shall have
been paid in, and a certificate thereof shall have been m ade and
recorded. E very such com pany m ust annually, except Insurance
companies, w ithin tw enty days from the first of January, m ake a
report, which shall be duly published and which report shall sta te the
am ount of capital and th e proportion actually paid and the am ount of
existing debts. Foreign corporations doing business in th e D istrict
of Columbia are subject to service of process on their agents or on
the persons conducting th eir business, or by leaving copy thereof a t
the principal place of business of such company, or a t the residence
of its agent. The affairs of the corporation shali be managed by not
less th a n three nor more th a n fifteen trustees, a m ajority of whom
m ust be residents of th e District, to be annually elected, except for
the first year, by th e stockholders, a t such tim e and place as m ay be
provided by th e by-laws. The fee of the recorder for filing all certi­
ficates of Incorporation where capital stock Is authorized Is forty
(40) cents on each $1,000 of the am ount of the capital of stock the


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1569

corporation, as set forth in Its certificate, provided th a t no fee shall
be less th a n $.25.
■■■ '■ è
C o u rts in session continuously throughout the- y ear. Suits on ,
contracts, accompanied by sufficient 'affidavit of. right to «recover,
results in judgm ent in tw enty days, exclusive of Sundays and- legal
holidays;;after day Of service on defendant, unless defendant-files an
affidavit setting forth facts which, if true, would In law constitute
a valid defense.
„
' v
:fi
,' 1
D ay s o f G race abolished.
D eeds. * The following form of deed is now all th a t is' required in
the D istrict of Columbia to convey a fee simple, title to real estate:
This deed, m ade th is .-.. .d ay o f . . . . . . . in the y e a r .. . . , by m e ,.....
o f............
witnesseth : T hat in consideration of (here insert con­
sideration), I, the s a i d . . . . . . . do grant unto (here insert g ran tees
nam e), of . . . . . .. all th a t (here describe the property)
' .
W itness m y hand ahd seal.
............. ............v
A deed m ust bè acknowledged and recorded w ith the recorder of deed*
and takés effect from th e tim e of recording. A scroll is considered a
sufficient seal.
D e p o sitio n s. Depositions of witnesses to be used in any civilcause w hether the case be a t issuè or not, m ay be taken under any of
the following conditions: 1. Where th e witness lives beyond the
D istrict of Columbia. 2. W here the witness is likely to go out of the
United States or out of the D istrict and not return in tim e for. the
trial. 3. Where the witness is infirm or aged, or for any reasph the
p arty desiring his testim ony fear he m ay n ot be able to secure th è same
a t the tim e of trial, w hether the said witness resides w ithin th e Dis­
tric t or not. 4. IÌ during the trial any witness is unable, by reason
of sickness, or other cause, to atten d the trial, th e deposition of such
witness m ay, in the discretion of the court, be taken and read a t the
trial. The deposition m ay be taken before any judge of an y court of
th e United States; before any commissioner or clerk of any court of
the United States, or any exam iner in chancery of any court of the
U nited States; before any chancellor, justice, or judge or clerk of
any qpurt of any S tate or T erritory or other place under the sover­
eignty of the United States, or any n otary public or justice of th e peace w ithin any place under the sovereignty of the United S tates:
Provided, th a t no such person shall be eligible to take such deposition
who Is counsel or atto rn ey for any p arty to the cause, or who is in
anywise interested in the event of the cause.
D e s c e n t a n d D is tr ib u tio n . The ordinary rules of descent m ay
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 p art of the father or m other and there be no child or
the descendant of any child, then to the brothers and sisters and th eir
descendants. 3. I t none, to the m other or father or th e ancestors
of the intestate and their descendants of the blood of th e m other or
father, grandm other or grandfather, as the case m ay be, subject to th e
widow’s dower. 4. If none, then, to the husband or wife and their
kindred in equal degree, equally. 5. No distinction between whole
and half olood on p art of parent from whom estate descended. 6. If
there be no heir, th# lands shall escheat to the D istrict of Columbia
Personal P roperty: If a widow and no child or descendants, parent,
brother or sister or descendants, the widow shall have th e whole,
of child or descendants, the widow shall have one-third o n ly if in
child or descendants, but parent, brother, etc., the widow shall have
one-half. The surplus shall go as follows: (1) If children or descen­
dants, to them equally per stirpes; (2) If no child or descendants and
a father, then to the father; (3) If no father, b u t a m other, then to
the m other; (4) If none, b u t a brother or sister or descendants, to
them equally per stirpes; (5) If hone, to collateral relations in equal
degree; (6) There is no distinction between the whole and half blood;
t7) No representation after descendants of brothers and sisters;
(*) Beyond the fifth degree, the personal estate goes to th e Dis­
tric t of Columbia. (•) The husband on death of the wife is entitled
to all her personal property in possession w ithout adm inistration, b ut
adm inistration Is usually resorted to for protection of parties dealing
with th e husband.
D ow er. A wife is entitled to dower in all real estate owned by the
husband a t the tim e of his death, including equitable as well as legal
estates.
E v id e n c e . (See Depositions.)
E x e c u tio n s . Executions m ay be levied upon all goods and chat­
tels of the debtor not exem pt, and upon gold and silver coin, bank
notes or other money, bills, checks, promissory notes or bonds, or
certificates of stock in corporations owned by said debtor, and upon
money owned by him in the hands of th e m arshal or of the constable
charged w ith the execution of such writ, and also upon all legal lease­
hold and freehold estates of the débtor In land. Executions on judg­
m ents before justices of the peace m ay be superseded, according to
the am ount of the judgm ent, upon good and sufficient security being
entered by a person who m ay a t th e tim e be the owner of sufficient
real property located in th e District, above all liabilities and exemp­
tions, to secure th e debt, costs and interests from one to six m onths,
b ut there can be no stay of execution for wages of servants or common
laborers, nor upon any judgm ent for less th an $5.
E x e m p tio n s . (Actual residents.) In addition to wearing
apparel, etc., household furniture to th e value, of $300, im plem ents
of debtor’s trad e or business to th e value of $200, stock for carrying
on business to am ount of $200, one horse, harness and cart, wagon
or dray, and earnings of m arried m en or heads of families, n ot to
exceed $100 per m onth fo r two m onths. E xem ptions are only
allowed where the p arty claiming such is the head of a fam ily or
householder residing in the D istrict.
F o re ig n J u d g m e n ts . Suits m ay be instituted in th e supreme
court of the District of Columbia on any judgm ent of a court of record
in any other jurisdiction. The declaration in any such case m ust be
accompanied hy a transcript of th e record of such Judgm ent verified
according to the act of congress in such cases m ade and provided, a n d
judgm ent In due course m ay be rendered on such transcript as in
any other case.
G a r n is h m e n t. A fter judgm ent th e w rit of garnishm ent m ay
Issue against specific property or credits in the hands of th e garnishee
and on th e return of th e writ, If there be credits, th e judgm ent or
condem nation follows. The w rit of garnishm ent can n o t be issued
against the United States or th e D istrict of Columbia.
H o lid a y s. Legal holidays are Ja n u a ry 1st. F ebruary 22d,
May 30th, Ju ly 4th, first Monday in Septem ber (Labor Day), Decem­
ber 25th, or the following day when any of these dates fall on Sun­
day, and suoh d ay as m ay be appointed by th e P resident of th e
U nited S tates for fasting and prayer. Every S aturday is a legal half
holiday and notes falling due on th a t d ay are n o t protested until
Monday. Process is n o t Issued or served by th e m arshal afte r 12
o’clock on S aturday.
H u s b a n d a n d W ife. The wife’s property Is exem pt from th e hus­
band’s debts. The husband m ay convey direct to his wife. The
wife m ay use all of her property of every description as fully as if she
were unm arried, and m ay dispose of the sam e by deed, etc., as fully
as if she were unm arried. She also has power to trad e and to sue and
be sued, b u t no m arried woman under th e age of tw enty-one years cam
m ake a valid deed or conveyance. On th e death of a m arried woman the

1570

BANKING AND COMMERCIAL LAWS—FLORIDA

husband Is entitled to. an estate by courtesy In her fee simple property
of which she dies intestate. On the death of the wife intestate her
entire personal estate becomes the property of her husband. The
husband is not liable tor the debts ot his wife contracted before
m arriage. A husband, who willfully neglects to provide for wife or
m inor child under sixteen years, in destitute circumstances, m ay be
adjudged guilty of a misdemeanor, and may be lined, or Imprisoned,
by the court having jurisdiction.
I n te r e s t. The legal rate of Interest in the D istrict of Columbia is 6
per cent, and in any suit where the contract is tainted w ith 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 paym ent of a higher rate of interest than
Is lawful in the District, m ade or to be performed In an y sta te or
T erritory of the United S tates where such contract rate of interest
is lawful, th e judgm ent for th e plaintiff shall include such contract
interest to the date of the judgm ent and interest thereafter a t the
rate of 6 per centum per annum until paid.
J u d g m e n ts . Every judgm ent is good and enforceable by an execu­
tion issued thereon for a period of twelve years from the date when an
execution m ight first have been issued thereon or from the date of the
last revival thereof by scire facias. Judgm ents of the municipal court
are n o t liens on real estate until recorded In the suprem e court of the
D istrict of Columbia
J u r is d ic tio n . (See Actions, Appeals, and Municipal Court.)
L im ita tio n s . Fifteen years for recovery of lands, tenem ents or
hereditam ents; executor’s or adm inistrator's bond, five years; instru­
m ents under seal, twelve years; simple contracts and recovery of per­
sonal property and damages for. its unlawful detention, three years;
statu to ry penalty or forfeiture, libel, slander, assault, battery, may­
hem, wounding, malicious prosecution, false arrest or imprisonm ent,
one year; all other actions three years. Usual exceptions in favor
of persons under disability. Acknowledgment to revive action on
debt m ust be in writing. P a rt paym ent will take d eb t o u t of statute.
M a rrie d W o m en . (See H usband and Wife.)
M o rtg a g e s . Mortgages are alm ost entirely supplanted by deeds
of tru st, requiring no court proceedings to foreclose. Joining the wife
la necessary to bar dower.
M u n ic ip a l C o u rt. This court which takes the place of w hat was
formerly known as the justice of the peace court has jurisdiction
to th e am ount of $500. This jurisdiction is exclusive when the
am ount claimed for debt or dam ages or value of personal property
does n o t exceed $100, and concurrent with the suprem e court of the
District of Columbia when it exceeds $100 and n ot In excess of $500
w ith right of certiorari in cases of concurrent jurisdiction.
P a r tn e rs h ip s . Lim ited partnerships for the transaction of any
mercantile, mechanical, or m anufacturing business within the D istrict
may be formed by any two or more persons, b ut the num ber of special
p artners Is lim ited to six. The .special partners are not liable for
•the debts of the partnership beyond the fund contributed by them
to th e capital; A certificate setting forth the firm nam e; general
n ature of th e business to be conducted; nam es of all the general
and special partners interested therein, distinguishing Which are
general and which are special, and their respective places of resi­
dence; th e am ount of capital contributed by each special partner
to th e common stock; and the period a t which the partnership is
to commence and term inate m ust be filed w ith the clerk of the supreme
court after having been acknowledged in th e m anner prescribed for
deeds.
P ro te s t. May be m ade by a notary public under his hand and
•seal; or by any respectable resident of th e place where the bill is
dishonored, in the presence of two or more credible witnesses. Where
a foreign bill, appearing on its face to be such, is dishonored by nonacceptance, it m ust be duly protested for same; and where such a
bill which has not previously been dishonored by non-acceptance,
is dishonored by non-paym ent, It m ust be duly protested for same.
' If it is not protested the draw er and indorsers are discharged. Where
a bill does n ot so appear to be a foreign bill, protest thereof In case
of dishonor is .unnecessary. The protest m ust be annexed to the bill
or contain a copy thereof and m ust sta te the (1) tim e and place
for presentm ent; (2) the fact th a t presentm ent was made and the
m anner thereof; (3) the cause or reason for protesting; (4) the
dem and m ade and the answer given, if any, or th e fact th a t the
draw er or acceptor cannot be found.
R e co rd s. The exemplification of the record under the hand of
the keeper of the same, and the seal of the office or court where such
record m ay be made, is good and sufficient evidence to prove any
record m ade or entered in any of the States or T erritories of the United
S tates; and the certificate of the p arty purporting to be .the keeper
of such record, accompanied by such seal, is prima facie evidence
.of. t h a t fact. A copy of the record of any deed or other instrum ent
in writing not of a testam entary character, where the laws of the
S tate, Territory, or country where the same m ay be recorded require
‘such record, and which has been recorded agreeably to such laws,
and the copy of any will which said laws require to be adm itted
to probate and record, by judicial decree, and of the decree of the
court adm itting the same t o ' probate and record, under the hand
;of th e clerk o r other keeper of such record and the seal of the court
•or office in which the record has been m ade, is prima facie evidence
to prove the existence and contents of such deed, will, or other instru­
m ent in writing, and th a t it was executed as It purports to have been.
T ax es. One and one-half per centum upon assessed value of

„property, real and personal. Assessments of real estate-are fhed at
approximately two-thirds .of real value. Penalty of 1 ter cent per
month for default in payment. Taxes are payable in May of each
yyeetr. New assessments are made every two years, for real estate
((unless improvements are put on) and every year for personal property
iby a permanent Board of Assessors. Intangibles are taxed at the
•rate of three-tenths of one percentum of the fair value thereof.
T r u s t C o m p a n ie s. T rust companies can be organized under the
general provisions of the code on th a t subject. No tru st company
can bp incorporated with less capital stock than $1,000,000. May
do a storage business w ith a capitalization of not less than $1,200,00“
.Foreign companies desiring to operate in the D istrict m ust first com­
ply w ith th e provisions for the organization of tru st companies under
th e laws of this District.
W ills. All wills and testam ents m ust be in writing and. signed by
.the testato r, or by some other person in his presence and by his express
directions, an d shall be attested and subscribed in the presence of
-the said testa to r by a t least two credible witnesses. No will, testa­
m en t, or codicil is effectual for an y purpose whatever unless the
Sperson m aking the same be, if a male, of the full age of twenty-one
•years, and if a female, of the full age of eighteen years, and be a t
th e tim e of executing or acknowledging It, of sound and disposing
mind and capable of executing a valid deed or contract. Any will
executed after Ja n u ary 17, 1887, and before January 1, 1902. devising
real estate, from which it shall appear th a t it was the intention of
the testa to r to devise property acquired after the execution thereof
•shall be deemed, taken and held to operate as a valid devise of ail
such property; and any will hereafter executed, which shall by words
■of general im port devise all of th e estate or all of the real estate of
th e testa to r shall be deemed, taken and held to operate as a valid


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''

devise ot an y real estate acquired, by said testa to r after the execu­
tion thereof, uni«*« an intention shall appear to the contrary. Whet«
a devisee or legatee dies before the tastato r, leaving issue, such issue
stands in the place of the deceased devisee or legatee unless a contrar»
intention appear from the will.
r

SYNOPSIS OF

T H E L A W S OF FLO R IDA
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by M . E. M

orey,

A ttorney a t Law, Pensacola.

A c c o u n ts . Open accounts are barred in three years.
A c k n o w le d g m e n ts m ust In every instance be under official sea).
If made In the S tate of Florida, m ay be m ade before any judge. Justice
of the peace, clerk or deputy clerk of a court of record, or notary publle;
or if m ade out of the S tate, and w ithin the United States, before a
United States Commissioner of Deeds appointed by th e governor ot
this S tate, or before a judge or clerk of any court of th e United States
or of any state, territory or district, having a seal, or before a notary
public or justice of the peace of such state, territo ry or district, having
an official seal, and the certificate of acknowledgm ent or proof shafl
be under the seal of the court or officer as th e case m ay be. If mads
o ut of the United States, before any commissioner of deeds appointed
by the governor of the S tate to reside in such country, or an y notary
publlo of such foreign country, or before any m inister charge d ’affaires,
consul-general, consul, vice-consul, commercial agent, or vice-com­
mercial agent of th e United S tates appointed to reside in such country.
Conveyances of dower and powers of atto rn ey for th e execution of
deeds to real estate m ust be executed in like m anner as conveyances of
real estate. A wife's acknowledgm ent m ust be taken separate and
ap a rt from her husband. Officers m ust certify th a t th e grantors an
known to him. The following is the usual form adopted, viz:
S tate of Florida,
(
County o f............................ f
Before the subscriber personally appeared........................................and
his wife....................... known to me to he the individuals described in
and who executed the foregoing Instrum ent who acknowledged that
they executed the same for th e uses and purposes therein expressed
and the sa id ....................................................................wife of the said ___
............................. being by me further and privily examined separate
and ap a rt from her said husband, acknowledged and declared that
she executed the same freely and voluntarily, and without fear, appre­
hension, compulsion, or constraint of, or from, her said husband, and
for the purpose of renouncing and relinquishing all her right, of what­
soever kind, in and to said property.
Given under my hand and seal official th is ............. .d ay o f ..............
19.........

•:. *>•
N otary Public.
M y commission expires........ , . . .
......................... (See notaries.)
A c'.ions. Suits shall be hegun o n ly in the county'(or, if less than
$100 in justice district) where th e defendant resides, or where the
cai'ze of action accrued, or where the property in litigation is.! f: If
brought in any county where defendant does not reside, the plaintiff,
or some person in his behalf, shall file with the precipe or bill in chan­
cery, an affidavit th a t the suit is brought in good faith and with no
Intention to annoy the defendant. This la tte r provision does not
apply to suits against non-residents. Where there are joint defendants
suit m ay be brought in any court (or justice district) where any one of
the defendants resides, or -where the cause of action accrued or where
the property In litigation is. Corporations (domestic) can only be
sued in a county where they keep an office. Foreign corporations may
be sued in any county where they have an agent, or where the cause
of action accrued or where the property in litigation Is.
A d m in is tr a tio n of E s ta te s . Upon the death of a person intestate
or having made a will b ut appointing no executor, the county judge
appoints an adm inistrator, preferring first the next of kin; b u t if none
such apply, then, upon notice given by publication, any creditor or
suitable person. No minor can be appointed. If no one applies for
letters of adm inistration within sixty days after death, the probate
court m ay order the sheriff to act. The adm inistrator appointed by
the court m ust give bond In am ount to be fixed by the probate judge,
respect being had to the value of the estate. The sheriff when acting
as adm inistrator is liable upon his official bond. Claims against an
estate are barred after two years from date of notice given by admlnls-’
trato r to present same. Debts due more th an five years prior to death
are barred, saving to married women, minors and persons non compos
mentis, imprisoned, or out of S tate, three years, after removal of disa­
bilities. The compensation of the adm inistrator is determ ined by
the court and, in addition to compensation for his ordinary duties,
not to exceed 6 per cent of money received for sales made of personal
and real property. A dm inistrators m ust m ake annual settlements
before the first day of June each year or forfeit commissions. The
C ircuit C ourt is empowered to authorize adm inistrator or executor
to carry on deceased's trad e or business for a reasonable time.
A ffid av its m ay be m ade before any judge, clerk of the circuit and
supreme courts, justice of the peace, or notary public.
A liens. No distinction between any citizens, except th a t they are
not, alio wed to vote.

BANKING AND COMMERCIAL LAWS—FLORIDA
Anneals Appellate proceedings for the common law side are by
■rrit nf error which m ust be sued out within six m onths from the date
i f the ludgm ent. The record m ust be filed in appellate court on or
before the retu rn day of th e writ, under penalty of dismissal. Ques­
tions of fact can only be taken up by bill of exceptions, which m ust be
nresented within the term of th e court unless by special order the tim e
extended. Appeals in chancery m ay be taken within six m onths
inri the law governing writs of error as far as It relates to filing of
transcripts of records and proceedings thereon and filing assignm ent
«^errors, the duty of appellate court In giving judgm ent, in causing
execution of its decrees and quashing writs of error, are applicable
to ¿opeáis in chancery. Notice of appeal in chancery m ust be filed
with clerk and recorded in m inutes. This gives appellate court Juris­
diction.
Arbitration. Parties to the controversy m ay m ake a niie of court
of any arbitration to which they m ay desire to subm it by filing ^ s ta te ­
ment of agreem ent of the m atters they desire to arb itrate in writing
with the court having Jurisdiction, which statem ent shall Include the
names of th e arb itrato rs and the um pire. An award upon such arbi­
tration can only be set aside for fraud, corruption, gross negligence,
•r misbehavior of one or more of the arbitrators or umpire, or evident
mistake,acknowledged by th e arbitrators or umpire, who m ade and
signed the award.
Arrest. No arrest for non-paym ent of money unless it be for non­
payment of a fine lawfully Imposed.
A ssig n m e n ts a n d In so lv e n c y . Assignments by insolvents are
orovid eel for by law. Preferences are not allowed. All property,
except th a t which Is exem pt, m ust be surrendered to the assignee.
Assignee gives bond and winds up estate.
A tta c h m e n t process m ay Issue upon affidavit made, setting forth
that am ount is actually due; th a t plaintiff has reason to believe defend­
ant will fraudulently p art w ith his property before judgm ent can be
recovered or is actually removing his property, or is about to remove
it out of the S tate, or resides beyond the lim its thereof, or is actually
removing or abo u t to remove out of the S tate, 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
ta which he she, or they reside. A ttachm ent m ay also Issue for a debt
not due, upon affidavit stating th a t the debt is actually existing, and
that the defendant is actually removing his property beyond the
limits of th e S tate, or is fraudulently disposing ox his property for
the purpose of avoiding th e paym ent of his ju st debts or demands, or
to fradulently secreting his property for such purposes. Proof m ust
also, be exhibited to th e officer by affidavit other than th a t of the plain­
tiff. of the existence of th e special ground. The making of the affi­
davit causes all debts to m ature for the purposes °f the suit. Plaintiff
must give bond, with two securities, in a t least double the debt or sum
demanded. Service of notice of the suit m ay be either personal or
by publication where attach m ent Is levied and property ls ngt retaken
by defendant. No arrest allowed In civil actions. W rits erf garnishment m ay be Issued a t commencement of suit or a t any t t a e after­
ward provided th e plaintiff, his agent or attorney, will m ake affidavit
that the debt for which th e plaintiff sues is just, due and unpaid;
that the garnishm ent applied for is n ot sued out to injure either the
defendant or th e garnishee; th a t he does not believe th a t defendant
will have in his possession after execution shall be issued visible
property in this S tate and in th e county in which suit is pending upon
which a levy can be m ade sufficient to satisfy the am ount of plaintiff s
claim, stating th e am ount, and, except in cases in w h ic h plamtiff has
had an attach m en t or obtained his final judgm ent, he, his agent or
attorney, m u st enter into bond payable to defendant in double the
amount of th e debt, conditioned to pay all costs and damages which
defendant m ay sustain in consequence of plam tiff s improperly suing
out the writ.
B a n k s. No banking com pany shall be organized with a capital
less than $50,000, except th a t banks with a capital of not less th an
$15,000 may, with approval of comptroller, be organized in any city
or town containing not more than 3.000 Inhabitants, a.n^ t h a t banks
with a capital stock of $25,000 may. with the aPProva1 of the com ptrol­
ler, be organized In any city or town of not ™ore than 6,000 inhabitants.
Savings banks m ay have not less than $20,000 capital. Banks
are formed as other corporations are. and can not begin business until
authorized by the com ptroller. The com ptroller of the S tate may
inspect and supervise th e business of th e bank, except national banks,
and inspect and examine its books, papers, documents,
everything pertaining to th e acts of th e bank. Banks »^e required
to make full and complete reports whenever called for by the State
Comptroller in such form as he m ay prescribe, and _advertise m
January of each year am ount of stock, property,. and contractual
indebtedness. Before organization th e whole o| the capital stock,
must be paid in cash. Stockholders are individually h ab h r t o t h e
extent of their stock a t th e par value thereof, m addition to the am ount
invested in said shares. D irectors m ust be citizens of the U nited
States, and own ten shares of stock of $100 per share The comp­
troller, w ith th e aid of th e courts, winds up the affairs of msolvent
banks. P riv a te bankers are subject to all penalties of th e State
banking laws and to th e supervision and control of th e S tate co m p ­
troller. No new p rivate banks permitted, after June 4, 1915. i t i
a misdemeanor to m ake wilful and malicious derogatory statem ents
affecting banking institutions.
B in s o f L a d in g . 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 w arrantor of th e q u an tity or quality of the goods represented thereby’,
except by express contract in writing, and the officers agents, and
employes^ of th e carrier are required to comply w ith the term s of the
bill of lading under penalty of criminal prosecution.
C h a tte l M o rtg a g e s a n d D eeds of T r u s t. All conveyances in­
tended to secure th e paym ent of money are m ortgages. Chattel
mortgages m ust be recorded or the property delivered to
to make them effectual against bona fide creditors and, purchasers for
value. Injunction will be granted against the
personalty from th e S tate; can only be foreclosed £y bill to (ffiancery
unless under $100, and upon personal property, when a common law
action m ay be brought in justice of the peace court, and m ortgage filed
with precipe. The form and effect of tru st deeds have not been dis­
turbed by sta tu te. I t is a criminal offence to m ortgage personal prop­
erty more th an once w ithout the consent of first lienor.
C h eck s a n d D r a fts , r f is a felony td obtain money or goods by
drawing and u tterin g check or d raft having insufficient
““
deposit to pay same, provided the check or d raft is presented in age
course and draw er fails to pay sam e within ten days after w ritten
notice of dishonor.
C o lla te ra l S e c u rity . I t is a m isdemeanor to sell, pledge, loan, or
In any way dispose of collateral security without the consent of pledgor.
A written agreem ent m ay be m ade a t the tim e of making the pledge
for the sale of th e collateral In such m anner and upon such term s as
the parties m ay desire.
C o n tra c ts . S t a t u t e o f F ra u d s . In order to bind »“ adm in­
istrator personally, or any one for the debt or default of another, or
one upon an agreem ent m ade in consideration of marriage, or upon
contracts for th e sale lands, tenem ents. Or hereditam ents or any uncertain interest therein or for any lease thereof for a period longer than


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1571

one year; or upon an agreement not to be performed within one year,
there m ust be an agreement, note, or m em orandum thereof in w ntiM
signed by the p arty to be charged, or some one lawfully authorized
by him. Contracts for the sale of personal property m ust be m writing,
or the property m ust be delivered or earnest money paid. News­
papers and periodicals m ust either be subscribed for or ordered in
writing.
C o n v e y an ces. (See Acknowledgments.) All conveyances of real
estate, or any Interest therein for a term of years of more th an two
years, m ust be by deed in writing, signed, sealed and delivered in the
presence of a t least two subscribing witnesses; and In order to bo
effectual against subsequent grantees or Incumbrances, m ust do
recorded. The wife’s separate estate can be conveyed only by the
joint deed of herself and husband, and confirmed by her acknowledg­
m ent, taken separate and ap a rt from her husband. VVords of lim ita­
tion unnecessary. H usband m ay convey direct to wile.
C o rp o ra tio n s may be organized for any lawful business under a
general law. Stockholder liable only for am ount unpaid upon sub­
scription. Charter fee of $2 fo.r every $1,000 of capital stock, payable
to the State, b u t no fee is less th an $5 and none over $250. (See
Service of Process.)
C osts. Non-resident plaintiff required to give $100 bond to secure
costs. The defendant m ay have suit dismissed if bond is not given.
C o u rts . C ircuit courts hold two term s a year in each county,
except in twelfth where four term s are held and in first, ninth, eleventh
and fourteenth circuits where they hold'three term s a year, and have
original jurisdiction in all equity cases, also m all cases a t law not
cognizable by inferior courts. C ounty courts have jurisdiction or
am ounts not exceeding $500. C ounty judges, a t all tim es ?Pe.n . . r
probate business, have full probate powers, have also civil jurisdiction
to extent of $100. Justice’s jurisdiction, $100.
C re d ito rs ’ B ills m ay be brought before claim is reduced to Judg­
m ent, b u t suit a t law m ust be first brought and judgm ent m ust be
obtained before decree can be rendered.
D ay s of G race are abolished.
D e p o sitio n s 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
S tate to remain until after the triai of the cause, or is very aged or
Infirm; or when oath is m ade th a t a m aterial p art of the case or delense
depends upon the testim ony of such witness. The tim e for the suing
out of the commission, the names, of the witnesses, and th e ta m e of
one commissioner m ust be given to opposite side a reasonable time
before commission is Issued. Printed Instructions for the guidance of
commissioners usually accom pany commission. Fees of not less than
$5.00 a witness are tQ be taxed as costs by the clerk and paid by losing
party.
D e s c e n t a n d D is tr ib u tio n of P ro p e rty . P roperty 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 m other in equal shares, or to
survivor
4 If no father or m other 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 th e m aternal branches in
the following course: 1. To grandfather. 2. To grandm other,
uncles and aunts. 3. To great-grandfathers. 4. To great-grand­
m other, 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 décédant. If w ithout 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, m other, brothers, or sisters or their descendants sur­
viving, then it descends according to the general rules o r descent
prescribed by sta tu te. Half-bloods inherit only one-half. Adopted
children are treated as children of blood. B astards inherit and
transm it through m other’s side, as if legitim ate. Allens h ave same
right as citizens. There are no entailed estates nor right of survivor­
ship.
D ow er. Deceased m ay n ot by will cut off his widow’s eighty to
dower. If dissatisfied with term s of will, she m ay 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 th e personalty. She m ay
within one year elect to take a child’s p art in lieu or dower. If the
husband die intestate, w ithout children, th e wife takes th e whole
estate, or dower, a t her élection.
E v id e n c e . Witnesses not disqualified by reason of Interest. I a
civil cases, husband and wife m ay 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 com m unication between
such lunatic or deceased person and the opposing p arty or those under
whom he claims, can be given by th e opposing party, unless such evi­
dence Is first offered in behalf of such lunatic representatives, legatees,
devisees, etc.
E x e c u tio n s . Executions can be Issued im m ediately upon the
entry of the judgm ent and within three years thereafter, and are a lien
upon real estate from date of entry, and upon personal property from
the tim e the sheriff receives them . They can be renewed
any tim e
within tw enty years from entry of Judgm ent. B oth real and personal
property are subject to sale under execution. Executions are return­
able when satisfied, sheriff reporting progress a t each term . Saie day
first Monday in each m onth. No stay law. No redem ption of prop­
erty sold under execution.
E x e m p tio n s to every head of a fam ily residing In th e S tate home­
stead of 160 acres of land, and im provements, if in th e country; onehalf acre of ground, if in an incorporated city or town, together w ith
$1,000 w orth of personal property. The exem ptions in a city or town
shall not extend to more im provem ents or buildings th an the residence
and business house of the owner. No property is exem pt from sale
for taxes or assessments, or for obligations contracted for its purchase,
or th e erection or repair of'im provem ents thereon, or for house, field,
or other labor performed thereon. The wages of every laborer who
is the head of a fam ily residing in the S tate, are exem pt from garnish­
m ent.
■
F o re ig n C o rp o ra tio n s. Commercial corporations can do business
in this S tate w ithout restriction upon complying w ith requirem ents
as to foreign corporations, provided its nam e is not th e sam e or so
nearly similar to any domestic corporation as to cause confusion.
(See Service of Process.)
F o re ig n J u d g m e n ts . Judgm ents obtained In th e several courts
of the S tate, m ay be recorded in any county and have sam e force and
effect as if originally obtained therein. Judgm ents obtained in other
S tates or countries, merely evidence, and have to be sued upon to be
made effective as judgm ents
F ra u d , (See Lim itations of Actions.) Obtaining money or prop­
erty under false pretense or by falsely personating another, are punish­
able criminally.
G a r n is h m e n t. (See Attachm ent.)

1572

BANKING AND COMMERCIAL LAW S—FLORIDA

x
C o m p a n ie s . G uaranty Companies are perm itted to
■tattrtoi^requirem “ £ts“ dS f° r aU purposes after A r t s with certain

^ o d F riday

18 m ade, In contracts to be perto legal holidays, such day shall be understood to
tl0ned under tItle Notes and Bllls of Exchange, and

ail d ™ fe- .T h e husband has full control of wife’s propn 2t ^ .* îr?2âbl? hy the Wife w ith the rents and profits^
M ust be joined w ith wife in sales of her property. Hom estead can
hy their joint deed. Husband n ot liable for wife’s
antenuptial debts. H as no interest in her separate earnings Has

to b iT fï p a “ s r s w S s S S s & j œ l J l S s K
2 'S ôf ÎÏÏ r“ i œtotoM ÎOmmï' “ “ Wlfe may Î>to hustl“ *l I»
Injunctions are granted w ithout bond upon affi­
d av it o t inability to give bond, and upon proof satisfactory to the
*r«efm 5 a t
affidavit Is true, and th a t the statem ents of the bill
tru e. Injunctions are granted to sta y proceedings a t l a w to
OM ^thPrhth a^ et^»prTOP ertyrUiider executIon or decree obtained against
a p t i l l own f r of the property; to restrain the destruction
of tim b e r by cutting, boxing, or otherwise; to restrain a levy upon
property; to prevent the claiming of exem ptions upon property
exem pt; and to prevent the removal from the S tate of
m ortgaged personal property.
c 01
I n s o lv e n c y . S tatutes suspended by national bankruptcy law.
C o m p a n ie s . Foreign and domestic, are placed bv
sta tu te, under control of S tate treasurer. T hey m ust annuallv file
a statem en t with, and obtain from th e S tate treasurer, a certificate
before being authorized to do business. Certificate m ay be revoked
a g a in s tlty refuses to pay judgm ents which have been legally obtained
_I n t e r e s t . E ight per cent Is allowed on judgm ents and contracts
is payable b u t no rate is specified. Contraot for more
th an 10, per cent is usurious, and all interest forfeited.
J u d g m e n ts of a court of reoord are a lien for tw enty years UDon
X n T r t V n f h i r ? , f î ? b iîhe county where rendered, and mayPbe
. H ! counties by recording certified transcript of judgS i» ^ lImoSyxC0Unt'J wh?.re a lien ls sought. Judgm ents of Justice of the
of clerk of c irc ïlt court
UP° n real 6State by rec o rd in g in the office
È 8efc}ire a, lle? hy lis pendens, a statem ent m ust
,c lerk of the circuit court, and recorded by him in a
P^tr Pose* setting forth the nam es of the parties, and
Jhe i ^ u r e of the relief sought, and th e description of the property
upon which it is desired to obtain a lien. S tatu to ry liens are given to
^ h o rers end m aterial-m en. P roperty for which m a t e r i X f re fur®3§EÉ upon which labor has been done. Is liable to persons n ot In
t0 the e^feu* of the unpaid balance of debt due
f £ J 5on^racf ° r ’, Owner personally liable in like am ount. S tatu to rv
liens upon real estate. In order to be available as against subsequent
purchasers or lienors w ithout notice, m ust be recorded and su it
brought within twelve m onths a f t e r t h ^ f o m i s h t a g o f t o e
nîvÎfiî+i’ 2,2? ,^be perform ance of the labor. Liens upon personal
property exist only while possession ls retained by lienor.
nriïxîÎ,1î x Î , f Ii? ° î A c t,a n 8 - Civil actions can only be commenced
following periods after the cause of action shall have
ActÎons °.° Florida judgm ents, actions on con»
tlons 111
and under seal tw enty (20) years;
real Property, actions on judgm ents of
courts of th e U nited S tates or any other sta te or territory seven (7)
yS®18- , ° n contracts in w riting n ot under seal, five (5) years. On
aU actions n ot herein and specifically m entioned, four (4 ) years
rt»r^ Pf's^oÎ.oite a lpyt Si5*!011 uP°h liability created by s ta tu te other
th an a penalty of forfeiture, taking, detaining or injury to chattels
S
S
R
l ground of fraud, upon contract no^T O ^ d ^ d upon
Juf^rument of writing, including an action open account for goods.
r i b an d merGhandise, three (3) years. Actions for libel, slander,
assault, battery, false imprisonm ent, or an action by another th an thè
?*a te upcm a sta tu te for a penalty or forfeiture two (2) years. Actions
deaÌ b of a child, actions against railroad companies for
M â t u r e ? one (1) y e a r3,0*100 by th ® S tate for a sta tu to ry penalty or

E f e g # retain their property, real or personal, owned
î n ^ H rîla'nn/>îlf,SSI1iredxt;b^e reafter by gift, devise, descent, or purchase.
S e n tiri
,h usband,8 « ebts except by her w ritten consent,
a™«°.*dV1? *2 law regulating conveyances of m arried women.
SSÊÊ Ë Êfêâtàm juin in all sales, transfers, and conveyances of the
8 P™p erty> ,®xcept when he has been adjudged Insane for more
R
W
Wife m ay sue concerning her real estate w ithout Joining
Sf
h f ^ n the suit. Widow takes as dower a life estate
one-third p a rt of the regi estate of which her husband was seized
5hïirfPO?seii8ed a t any tIm® during her coverture, and an absolute one.Rf r8on^It ? : 97 “ a y a* her option take as an heir equally
S fik Jp iS u bJxdren oi Î5® husband, and if there are no children she will
Inherit all th e property, real and personal.
E °th sexes a tta in their legal m ajority a t th e age of 21
wbo deposit in savings banks m ay control, transfer
♦x«îï?tb d ra w -jb ^ ,money so deposited. -All other contracts m ade by
them are voidable, except for necessaries.
real estate m ust be executed and proved or acknowl+
sam e m anner as deeds, and they, likewise assignm ents
thereof, to be effectual against creditors or bona fide purchasers.
“ Ufi be™ t??r2 ed- _^re foreclosed by bill in equity in th e circuit
C h attel m ortgages m ust be recorded unless property is
? ^ î î ^ + d p m ortgagee and rem ains in his possession; becomes subject
ro. ^©ots or m ortgagee if left in his possession more th a n tw o years
w ithout th e m ortgage being recorded.
'
* E oth m en and women over tw enty-one years m ay be
aPPehited notaries public. T hey m ust renew commissions every four
yearn- M&y adm inister oaths, take acknowledgm ents and perform
’ $500 bond is required to be given. Certificate
m ust show d ate of expiration of commission.
hJ*Ì?Ì?,?.a n d iv?iU9 ° f E c h a n g e . Form and Interpretation defined
by sta tu te . No requirem ent th a t It shall be m ade payable a t a h»"ir
??„a ° y, hxed place. 5 per cent dam ages are allowed on foreign com­
mercial paper protested In this S tate. Bills of exchange, bank checks.
? ? cp r9?liss? iy “ «te8 ^ h ich are presentable for paym ent or acceptance
2 ?.s unday. New Y ear s Day, Christm as Day, 3d of June, 4th of July;
22d of February. 19th of Jan u ary , 26th of April, first Monday in Serx
tom ber, secondi F riday in October, any general election day, and
S aturdây (except dem and paper, which m ay be presented before 12
0 clock S aturday unless th e whole d ay is a holiday), or an y day
appointed by th e P resident of th e U nited S tates or by th e Governor
01 tn® s ta te as a day of thanksgiving or fasting or prayer or other
religious observances. Shrove T uesday or M ardi Gras in every citv
which th ere is a carnival association organized for th e purpose of
celetoating it, shall be deem ed presentable for paym ent or acceptance
on th e secular or business day next succeeding such holiday.
P a r tn e r s h ip , L im ite d , a n d S p ecial. None.


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. I fe ^ e ro of A ttorney. A ny contract or conveyance m ay be m u u
hv nnZVr ° f#a1i,orney. * A conveyance of a m arried woman’s reM m S S
order t0 be valId tbe P°wer of attorney m 5«
.2tlil!t,5i0Tiledge2 by k er separate and a p a rt from h er husband. a n ^ S S
iedgmen^t m ust sta te th a t she executes It freely and voluntarfh?
xh co^ 5 ulaxlont I®^1-’ apprehension, or constraint of or from hm
hPehaud- The husband m ust Jo in either In th e deed or powsw S?
b l ?™ orted
0i atto rn ey for th e conveyance of real estate S w
jf ro ? a t e _,!b,aw,•, i s ee A dm inistration of E states.) The oount.
tfon o f ^ s t a t f t decedents“ ° f &U“ a tte rS re la tto e t0 th ead m b d « i v
P r o te s t. (See Notes and Bills of Exchange.)
Records of deeds and m ortgages are kept in the office of
of th e several circuit courts, and th e original m ust be recorded
In the county w ithin which th e property lies. Wills are reaifirnd
fn
w*!1} the several county judges and m ay be probated
In any county in which th e deceased left property. If he dies out of «¡2
StateH death takes place w ithin the' StefoTthen^ in the county tS
^fhi2b J® ;h?8 bad residence, house, or other place of abode a t the Uma
died18 d a th ’ and u he bad none such, then in the county wherein he
R e d e m p tio n . None, excepting ta x sales.
♦ o £ ep,l e v ln lles ior Soods or chattels wrongfully taken, except when
taken for taxes, o ru n d e r execution, or a t suit of defendant ^ i e n the
Rtoperty was originally replevied from defendant and has been
A^Yered to plaintiff, or when plaintiff Is not entitled to possession.
^ ^ di vl.t md8t he died, describing property sought to be recovered*
and stating th a t it was n ot taken for any tax, fine levied by virtue at
a P jla w o f the S tate, nor seized under execution or attachm en t
fn rfn«xuf+xnd ehattels 1 of the plaintiff; liable to execution and bond
writ !«
value of th e property w ith two sureties given before the
forthcom ing bond ““ “ ay release the property w ithin three dayS
?®al. A scrawl or scroll, printed or w ritten, affixed as a seal to any
w ritten instrum ent, is effectual.
y
hl.s 5 *;Vice o f P ro c ess. O ut of circuit court, m ade by th e sheriff or
J^i^eiJufY- O ut of county judge s or justice of peace courts, may be
Vy sheriff or constable. Service in civil actions m ay be made
eRher upon the person of the defendant, or by leaving a copy a t his
residence w ith some person over fifteen years of age. Process against
a domestic or foreign corporation m ay be served upon any officeHr
business agent of said corporation residing in Florida.
ctl<?ns at, law are commenced by filing a precipe with the
ox
ls required except In suits by attachm ent and
W rit,s, are returnable on the n ex t rule day, provided
fe n d a v s intervene; if not, then o n the rule day in the next succeeding
tv2& $*
appearance of defendant, default is entered forthwith.
Default ma,y be entered for w ant of plea or other pleading on rule day.
n ex t after appearance day.
. T axes. x Taxes are not due and payable until the first d ay of Novem­
ber, and if not paid by first day of th e following April property may be
fPkb Owner has two years within which to redeem. Taxes are a
b®*i from th e first day of th e year of the assessment, and have the force
and effect of a judgm ent upon which execution m ay issue.
T e s tim o n y . (See Depositions.)
in
of S t?rc k *i Stock is transferable in the m anner prescribed
_ No ! tock ean be transferred until, after all previous
?n8o?iS« f nt5 Ihereon have been fully paid. The transferee succeeds
to all the rights and liabilities of the prior holder.
W a re h o u s e R e c e ip ts. The warehouseman m ay give a receipt fo>
him, describing such goods, and such receipt Is
negotiable, and transfers title to tbe bolder.
, W IIl8- Auv Person over tw enty-one years old and of sound mind
“ ay m ake a will. This includes m arried women. Wills of real estate
m ust be signed by te sta to r or some person in his presence and by his
express direction, and m ust have two witnesses who m ust subscribe
m testa to r s presence. Wills of personal property m ust be in writing
and signed by tbe testa to r or some one in bis presence, and by hit
express direction. N uncupative wills are good as to personal property,
in v o catio n m ay be by subsequent will or codicil attested like the
? y burning, cancelling, tearing or obliterating th e same
by the testa to r or by his direction and consent, or by th e act and
operation of law. Wills m ust be probated before adm ittance in evidence. Foreign wills, when duly probated according to laws of the
State, where m ade and duly recorded in this State, are as effective
aa y dls “ reputed in this State. Foreign wills are construed according
to law of S tate where they are executed.

B A N K IN G A N D COM M ERCIAL L A W S — G EORGIA
S Y N O P S IS OF

T H E L A W S OF GEORGIA
RELATING TO
B A N K IN G A N D COM M ERCIAL U S A G E S
Revised by B ro w n & R a n d o l ph . P a r k e r & S cott , A ttorneys

a t Law. A tlan ta. (See Card in A ttorneys’ List.)

A ck n o w led g m en ts. (See Deeds.)
A ctio n s. All distinction between suits a t law and In equity Is
abolished. E quitable relief can be had In superior courts of law.
A d m in is tr a tio n o f E s ta te s . L etters of adm inistration issue in
the » "« of preference, first to th e husband or wife, second to th e next
of kin. relations by consanguinity are preferred to those by affinity.
If there are several of th e n ex t of kin In the same degree, preference
Is given to th a t one selected in writing by those m ost Interested in
the estate. If no preference Is expressed th e ordinary exercises
his discretion. If no application is m ade by next of kin a creditor
m ar be appointed, and If no application Is m ade the ordinary will
vest th e adm inistration in a county adm inistrator, an officer authorized
by sta tu te for th a t purpose. A dm inistrators m ust give bond in double
the value of th e estate. O ut of th e estate of each deceased person,
the first charge, after funeral expenses. Is a year’s support for the
family, to be laid off by commissioners according to the condition
and standing of th e fam ily. Foreign adm inistrators m ay a ct In this
State on giving bond to th e ordinary where they qualify. The bonds­
men m ust be residents of th is S tate. A citizen of any o ther S tate m ay
set as executor of th e will of a deceased citizen of this S tate when he
has th e sam e Interest an d will give th e same bond as In th e case of
foreign adm inistrators. A dm inistrators of other States m ay sue In
this S tate by flung in th e office of th e clerk of th e court, to which suit
Is brought, a properly authenticated copy of th eir letters of adminis­
tration.
A ffid av its. Pleas and defenses In the courts of this S tate which
are required to be under oath, m ay be m ade before any official of
the S tate o r county where th e oath Is m ade, who Is authorized by
the laws of such S tate o r county to adm inister oaths. P rim a F ad e
the official attesta tio n of th e officer is evidence th a t he was author­
ized to act. Any non-resident seeking equitable relief, when called
on to verify proceedings, should be sworn before a commissioner of
this S tate, or a judge of a court of record where the oath Is made,
with th e attesta tio n of th e clerk of such court th a t th e signature of
the judge Is genuine, an d th a t the court over which he presides Is a
court of record.
,
A llen s. The subjects of governm ents a t peace with th e United
States an d th is S tate are en titled to th e rights of citizens of other
States, resident here, In so fa r as th ey accord to them the privilege
of purchasing, holding, and conveying real estate.
A p p eals. (See Courts.)
A r b itra tio n . U nder th e law of Georgia disputes and controversies
relating to rights, or property, m ay be subm itted to arbitration.
A rre s t. The constitution of Georgia dedares th a t there shall be
no im prisonm ent for debt. B ut In an action to recover personal
property th e defendant will be arrested by th e officer to whom process
Is directed, an d will be com m itted to Jail unless he shall give bond
and good security, o r deliver up the property, or show to the satisfac­
tion of th e court th a t i t is w ithout bis power to produce it.
A s s ig n m e n ts . Assignments for th e benefit of creditors are per­

mitted.

A tta c h m e n ts . A sum m ary process of attachm ent will Ue In
the following cases: 1. W here th e debtor resides out of th e S tate.
2. W here he is actually removing, o r about to remove, w ithout the
limits of th e county. 3. W hen he absconds. 4. When he resists
a legal arrest. 5. W here he is attem p tin g to remove his property
beyond th e lim its of th is S tate. 6. W here he has disposed of, or
threatens to conceal, his property, liable for the paym ent of his debts,
or «hull m ake a fraudulent lien thereon to avoid paying his debts.
Attachm ent will lie to recover th e purchase money of an article sold
when th e deb to r Is still In th e possession of the property. A ttach­
ments m ay Issue upon affidavit by th e plaintiff, his agent or attorney,
who m ust swear th a t one of th e sta te of facts exists which authorize
an attachm ent, and also as to th e am ount of the claim. Bond a n a
security, in double th e am ount sworn to, m ust accom pany the affidavit
and th e officers require personal security. Non-resident corporations
are liable to attachm ents, and one non-resident m ay attach the
property of another non-resident in this S tate, except for wages
earned w ithout the S tate.
B a n k s. A ny num ber of persons, n o t less th a n three, m ay form
a corporation for th e purpose of carrying on the business of banning.
Such corporations, when organized, have power to have continual
succession for th irty years, w ith right of renewal; to sue and be sued,
to have and use a common seal; to appoint officers and agents; to m ane
by-laws; to hold, purchase, dispose of, and convey such real and
personal property as m ay be necessary for Its uses and business, to
alsoount bills, notes, or other evidences of debt; to receive and pay
out deposits, w ith or w ithout interest; to receive special deposits; to
deal in foreign exchange; to lend money upon personal
pledges of bonds, stocks, negotiable security; to take and receive
securities by m ortgage o r otherwise on property real or personal.
The business of th e corporation shall be under th e m anagem ent and
control of a board of directors, to consist of not less th an three or more
than fifteen of th e members of th e corporation, who m ust be owners
and holders of one o r more shares. „
bank shall be c h i ^ e r e d ^ t h out a capital subscription In good faith of a t least $25 000. of which
not less th an 20 per cent, and In no case less th an ?15,000 m ust De
paid In before filing th e declaration w ith the secretary of S tate. The
corporation shall be responsible t o i t s creditors to th elex ten t of Its
oapital and its assets, and each stockholder shall be individually liable
for all debts of th e corporation to th e extent of his unpaid shares of
stock, and shall be fu rth er and additionally liable, equally, and ratably
(and not one for another as sureties) to depositors of fald w ^ o ra tio n .
for all m oneys deposited therein In an am ount equal to the face value
of their respective shares. All corporations doing a banking business
in this sta te shall m ake to th e S tate hank examiner, 1under oath,
statem ents Bhowlng th e resources of the bank or corporation, a t th e
close of business on an y day specified h y t h bank exam iner. No
bank shall loan to Its officers any money without good coUateral, or
other am ple security, and when such loan exceeds. i° ,P eL £f5t m
capital stock it shall n o t be m ade until approved In w riting by_a
m ajority of th e board of directors. No_ bank ,°r corporation doing
banking business shall reduce its cash in band, i n d u d i^ a m o tm t due
by banks an d bankers, an d th e value of all stocks and bonds actually
owned and held, below 25 per cent of dem and deposits. No bank


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Federal Reserve Bank of St. Louis

1573

or corporation doing a banking business shall loan to an y one person,
unless such loan Is am ply secured by good collateral security, more
than io per cent of Its capital stock and surplus. Banks m ay charge,
sam e rate of interest as individuals, and th e rules of bank discount,
th a t Is to say, taking Interest in advance w ithin th e lawful rates, have
been held n ot usurious. No dividend shall be declared b y an y bank
except from th e n et profits, nor shall th e capital stock be applied to
the purchase of Its own shares. If th e assets of a bank are Insufficient
to pay its liabilities, a receiver when appointed, shall bring suit against
th e stockholders In his own nam e for th eir unpaid subscriptions. In
th e absence of a contract, expressed or implied, to th e contrary, the
bank taking paper for collection is liable for th e defaults of its agents
and correspondents to whom th e paper has been entrusted for collec­
tion. If an y insolvent bank or banker, w ith notice of such Insolvency,
shall receive money o r general deposits, and fall to p ay th e depositor
within three days a fter dem and, such banker or officer in charge of th e
bank receiving th e deposit shall be' punished as prescribed In the
penal code. The S tate has a special lien for all public m oney de­
posited. S tate banks are authorized to become m em bers of th e
Federal Reserve Bank.
B ills o f L a d in g a n d P ro m is o ry N o te s. A bona fide assignee
of a bill of lading of goods will be protected in his title against th e
seller’s right of stoppage in tran sit. I t will not be necessary to protest
promissory notes in order to bind the endorser except In th e following
case: 1. W here th e paper is m ade payable on Its face a t a bank or
banker’s office. 2. W here it Is discounted a t a bank or banker’s
office. 3. W here It is le f t a t a bank or banker’s office for collection.
Accommodation endorsors, sureties and endorsors m ay be sued in
th e sam e county and in th e same action w ith th e m aker, draw er or
acceptor. Bills of exchange m ust be accepted In w riting to bind
the acceptor: A contract to pay atto rn ey ’s fees cannot be enforced
unless the debtor when served ten days before suit Is filed w ith a
w ritten notice of Intention to sue w ith am ount and term of court to
which su it will be brought; shall fail to pay such debt before return
day. A waiver of hom estead In a prom issory note Is a bar to such a
claim as against the collection of such note. Prom issory notes and
contracts containing reservation of title to personal property m ust
be executed before a notary public, justice of the peace, or clerk of a
court of record, and m ust be recorded as m ortgages to hold such
property as against th ird parties or Innocent purchasers.
C h e ck s. (See Notes, etc.)
C o lla te ra ls. The holder of a note as collateral security for a deb t
stands upon th e sam e footing as th e purchaser. ^Property left In
pledge or pawn m ay be sold a t public sale to th e highest bidder, upon
th irty days notice.
C o rp o ra tio n s. Power to create corporations in this S tate is vested
in th e general assembly and th e superior courts. Said courts m ay
grant charters to all corporations except banking, insurance, canal,
navigation, express, and telegraph companies and railroads. T he
Secretary of S tate m ay g ran t charters for th e corporations above
enum erated in m anner prescribed b y law in th e particular case. A
charter for a private corporation is obtained by a petition to th e
superior court, setting forth th e object, p articular business, corporation
name, capital, place of business, tim e for which incorporation is desired,
n ot exceeding tw enty years. T he petition and order granting th e same
constitute th e charter. In such corporations th e liabilities of th e
stockholder is m easured by th e am ount of unpaid stock subscription
due by him. In th e charter of m any banks now organized th e rule
of personal liability varies. In some banks stockholders are liable as
partners: In others liability exists under th e general rule, v iz.: to the
extent of twice th e am ount of stock held, and in some banks liability
exists only to th e extent of stock and unpaid subscriptions thereon.
T he paym ent of 10 per cent of th e capital stock is necessary before
nnmm«nf»ing business. General powers of corporations are conferred
on all corporations organized in th is state. All corporations organized
under th e laws of th e S tate or doing business therein are required to
register w ith th e Secretary of S tate and pay a graded license fee, w ith
a minimum of $ 1 0 , m a x im u m $ 2 0 0 . V oluntary dissolution of a
corporation in ay be granted b y th e Superior C ourt upon petition filed
by th e Corporation if authorized by tw o-thirds of capital stock. Lost
stock certificates m ust be established by petition to Superior C ourt;
C o sts. A deposit of $10 is required In courts of record from
non-resident plaintiffs before th e filing of suits and a deposit of $6 In
all divorce cases.
C o u rts . The term . Jurisdiction, etc., of the several courts of th e
S tate are as follows: JU STICE COURTS hold m onthly sessions and
have civil jurisdiction up to $100. In criminal m atters th ey are
Sffiy rom m itttag courts. COURTS OF ORD INARY hold their
sessions m onthly and have Jurisdiction over wills, adm inistrations qf
estates, and of th e conduct of adm inistrators, executors and guardians.
COUNTY COURTS have m onthly and quarterly sessions. Their juris­
diction is lim ited to controversies n ot exceeding $300.
CITY
COURTS hold four sessions per annum , b u t th e city court of A tlan ta
has six term s. The jurisdiction of city courts Is unlim ited, except in
m atters of divorce, title a to land and adm inistration of equitable relief.
The municipal court of A tlanta, recently established, replaces th e
Justices Courts. Its jurisdictional lim it is $500. I t holds tw o term s
each m onth. SU PER IO R COURTS have jurisdiction of all suits
and controversies and have exclusive jurisdiction in equity powers,
divorce esses, and suits involving titles to land, and on tne^ crim inal
side exclusive jurisdiction of all cases involving life or im prisonm ent
in th e penitentiary.
D eed s. Deeds to real estate In Georgia m ust be In w riting, and
should be executed in the presence of two witnesses, one of whom shall
be an officer authorized for th a t purpose. T hey should be recorded
In th e office of the clerk of the superior court of th e county where th e
land lies, and all deeds, mortgages, and other liens, should be recorded
Immediately to be available against th ird parties and innocent pur­
chasers To authorize th e record of a deed to realty, it m ust be a ttested by or acknowledged before, if executed o ut of this S tate, a
commissioner of deeds for th e S tate of Georgia, n o tary public, clerk
of a court of record, or a consul, or vice-consul of th e U nited S tates
(the certificates of these ¡officers under their seals being evidence of
the fact). When th e deed is,executed o ut of this S tate before a
n otary public, the attesta tio n should be under his hand an d official .
seal In case of acknowledgment it is better, as a matter,:,of precaution,
always to have two witnesses, besides th e officer who takes th e acknowl­
edgm ent. If executed in this S tate, it m ust be atteste d by a judge of
a court of record of this S tate, or a justice of th e peace, or n otary
public, or clerk of th e superior court, in th e county in which th e three
last m entioned officers respectively hold their appointm ent, or if subse­
quent to its execution the deed is acknowledged in th e presence of
either of the nam ed officers, th a t fact, certified on th e deed by such
officer, «bail entitle it to be recorded. (Act of 1893.) Deeds to secure
loans are In more common use th a n m ortgages because th ey have
been held to pass the absolute title and protect against year s support
and dower, th e eqult of redem ption rem aining Id the m aker, c a n n o t
be levied upon until th e debt secured by th e deed has been paid
off Under th e law of Georgia these deeds can n ot be foreclosed as
m ortgages, th e notes th ey are given to secure m ust be sued to judg­
m ent, the land m ust be re-conveyed to the grantor, and th en levied
on b u t the lien of the Judgm ent relates back to th e date of th e con­
veyance. I n the Federal courts, however, foreclosure can be m ade
In equity as In th e case of ordinary mortgages. U sury will, however,
void s u c h 'a Conveyance.

1574

B A N K IN G A N D COM M ERCIAL L A W S — GEORGIA

D e p o sitio n s. Testim ony is taken In this. S tate by w ritten in ter­
rogatories where the witness Is a female, or where the witness does
n o t reside in the county where th e 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 m ust be authorized by a commission issued for such purpose
by th e court here, two commissioners m ust act. Commissioners m ust
be disinterested and n ot related to either party, or connected with
th e case; attorneys of th e parties a re incom petent. N oneof th e parties
to th e case, nor their agents or attorneys, can be present when the
commission is executed. The witness can only w rite his answer in
jh e presence of th e commissioners. I t is usual, and th e b etter practice,
for one of the commissioners to w rite the answers of the witness as
th ey are given. Depositions m ay be w ritten w ith the typew riter,
an d commissioners may adjourn th eir sittings from day to day. The
following instructions for taking testim ony are im portant: In stru c­
tions for taking answers to interrogatories: 1. In sert th e commis­
sioners nam es in th e commission; an y two respectable citizens will
do. 2. S tate th e case as you find it. T hen pomes th e caption, thus:
S tate of
(Here Insert th e county and S tate
County o f . . . . . . . . .........> • where the commission is executed.!
By v irtu e of a commission from t h e ................... court o f .....................
county, we have caused the person in said commission nam ed to come
before us, who being duly sworn tru e answers to m ake to certain
interrogatories thereto annexed, deposeth and answ ereth as follows:
(Here insert answers of th e witnesses to each Interrogatory in order.
3. L et th e witness sign the answers; then say: "Answered, sworn to,
an d subscribed before us, th is . . . . day of
1 9 . . . . " Then
sign your own names, adding the words "Commissioner (L. S.)’’ after
each nam e. 4. Seal all up together, using two wafers, each •com­
missioner writing his nam e w ith “ Commissioner” across a wafer or
seal. 5. S tate the case on the package, and address it to the clerk
of th e court Issuing the commission. 6. If it is to go by mall, get
th e postm aster to receipt on the package. “ Received from one of
th e commissioners (giving his name) th e w ithin interrogatories, to be
forwarded by due oourse of m ail,” nam ing his post-office. Testim ony
th u s tak en m ust be sent by mall, or by some person specially author­
ized by th e commissioner to carry it to the court.
D e s c e n t a n d D is tr ib u tio n o f P ro p e rty . The husband is the
sole heir to his in testate wife, unless she leave children, and in th a t
event the husband and children shall inherit per capita, b ut the
descendants of children shall take per stin>e. If a m an die without
children, or th e descendants of children, leaving a wife, the wife is
hja sole heir. If there are children, or those representing deceased
children, th e wife shall take a child’s p art, unless th e shares exceed
five in num ber, in which case the wife shall have one-flfth p a rt of the
estate. If the wife elects to take her dower, she has no further interest
In th e estate. Children stand in th e first degree to the intestate, and
inherit equally. Posthum ous children stand upon th e same footing
with o th er children. Lineal descendants of children stand in the
place of th eir deceased parents, and take per stirpe, and not per
capita. B rothers 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 w ith the whole
blood. The father, if living. Inherits equally w ith brothers and sisters,
and stands in the sam e degree. If there be no father, and the m other
la alive, she shall inherit in the same m anner as the father would.
Real estate descends direct to the heirs, and personal estate to the
adm inistrator. B ut real estate is subject to adm inistration for the
purpose of paying debts, and if necessary, for distribution.
D o w er. In this S tate th e wife is entitled to an estate for life in oneth ird ofaall lands of which the husband dies seized o r possessed a t the
tim e 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 m arried woman, on th a t question, need n o t join w ith her hus­
band in conveying land, except in cases where, before 1866, he obtained
real estate belonging to his wife, by virtue of th e m arital 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.
E x e m p tio n s a n d H o m e s te a d s. Under the constitution and laws
df Georgia, each head of a fam ily or guardian, or trustee of a family
of m inor children, or of a n aged or infirm person, or a person having
oare an d support of dependant females of any age, who is n ot the
head of a family, shall have exem ption of realty, or personalty, or
both, to th e aggregate of $1600. The debtor shall have power to waive
or renounce, in writing, his right to the benefit of exem ption above
stated, except as to wearing apparel and not exceeding $300 worth
of household and kitchen furniture, and provisions. The homestead
or exem ption m ay be sold by the debtor and his wife, if any, with the
sanction of the judge of th e superior court of th e county where the
debtor resides, or th e land is situated. The proceeds to be re-invested
upon th e same uses. A general w aiver in writing, of th e hom estead,
or exem ption, is good.
F o re ig n C o rp o ra tio n s. All corporations, except those chartered
and organized under the laws of th is State, are held to be foreign
corporations. Such corporations are recognized by com ity only;
th ey are subject to attachm ent, b u t have all th e rights of replevy and
defense. They cannot exercise any corporate powers or privileges
which by th e constitution and laws of Georgia are denied to domestic
corporations or the exercise of which would be contrary to th e public
policy of this S tate. There is otherwise no restriction Upon foreign
corporations except in the case of insurance companies and building
and loan associations, which aré required to m ake deposits. All cor­
porations are subject to license fees for doing business and all are liable
for taxes on property owned or held in the S tate. (See Corporations.)
F ra u d . Contracts, awards, m arriages, judgm ents, sales, and wills
are void when they are brought about and procured by fraud. Prom ­
issory notes when procured by fraud are void in th e hands of th e holder,
who so procures them . The sta tu te of frauds, as of force in Georgia,
requires th e following obligations to be in writing, signed by th e party,
or his authorized agent, to be binding: / 1. A promise by an executor,
adm inistrator, guardian, or trustee, to answer in dam ages o ut of his
own estate. 2. A promise to answer for th e debt, default, or mis­
carriage of another. 3. An agreem ent m ade upon consideration of
m arriage, except m arriage articles as otherwise provided. 4. Any
contract for th e sale of lands, or an y interest in or concerning them .
5. Any agreem ent th a t is n ot to be performed in a year. 6. A
promise to revive a debt barred by sta tu te of lim itations or bankrupt­
cy. 7. Any contract for the sale of goods, wares, and m erchandise,
In existence o r n ot in-esse, to the am ount of $50 o r1more, except the
buyer shall accept p a rt of the goods sold and actually receive the same
o r give som ething In earnest to bind th e bargain or in p a rt paym ent.
8 . An acceptance of a ¡bill of exchange.
G a r n is h m e n ts . This process m ay be invoked in any case. Gar­
nishm ent m ay be dissolved by giving bond and a third p arty m ay
claim a fund held up under garnishm ent and m ay release th e fund by


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giving bond. Any person may claim exemption from garnishment a«
to wages to the extent of $1.2o per day and one-half of the remainder!
_ H o lid a y s. January 1st (New Year’s Day). January 19th n>p’!
Birthday). February 22nd (Washington’s Birthday). April 2fith
■(Memorial Day). Jdne 3rd (Jefferson Davis’ Birthday). July 4 th
(Independence Day). First Monday in September (Labor Davi
December 5i5th (Christmas Day). Thanksgiving Day.
I n t e r e s t . The legal rate of interest in Georgia is 7 per cent, but 8 Der
cent is legal when contracted for In writing. P arties charging usurv

forfelt the excess If usury is set up. And usury will render a deed
void, and will in a contract o r m ortgage render a w aiver of home­
stead. or contract to pay atto rn ey s’ fees yoid.
J u d g m e n ts create liens from th eir rendition upon th e real or per­
sonal property of the defendant: all Judgm ents a t th e same term rank
equally, and property sold by a debtor after Judgm ent is obtained
against him is only discharged from th e lien of such judgm ent, if real
estate, after four years’ possession by the vendee, and in cases of per­
sonal property. after two years’ Judgm ents, w hether in the United
States court, or in any S tate court, obtained hi an y o ther county th^n
th a t in which the defendant resides have no lien on the property of
the defendant in any o ther county, unless the execution thereon Is
recorded in th e county of th e defendant’s 'residence. Unless sueh
execution is recorded as so required w ithin th irty days, its lien will
only date from the tim e of record. (See Actions.)
J u r is d ic tio n . (See T itle Courts.)
L ic en se. No license is required of com m ercialitravelers. Itinerant
traders m ust p ay license fees.
L ie n s. U nder the laws of Georgia mechanics, m aterial-men, machinists, employes of steam boats, millwrights, builders of gold mine
machines, stone-cutters, and m arble works laborers have special liens
on property im proved or worked on. L andlords have a general lien
which takes effect from th e levy of distress and a special Hen 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. A ttorneys have a
special lien on papers in th eir hands and on property recovered in suits
brought by them or successfully defended by them .
L im ita tio n s . Suits on open accounts are barred after four years,
on promissory notes and bills after six years, on instrum ents under
seal after tw enty years, on suits for personal Injury after two years.
Seven years’ adverse possession of real estate under color of title, and
tw enty years’ adverse possession w ithout color of title, will bar the
claims of all persons not laboring under disability. Infants have seven
years to assert their rights, after becoming tw enty-one years of age.
M a rrie d W o m en . The wife m ay c o n tr a b a n d sue and be sued In
her own nam e in respect to her separate estate as a femme sole, except
th a t she can not bind her separate estate by suretyship for her hus­
band, and any promise to pay her husband’s d eb t 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 m ay sue and recover from any
person money or property used by her husband to pay his debt where
th e creditor takes with notice. All the property of the wife a t the
tim e of marriage, and all she m ay acquire by gift; Inheritance, or pup
chase, shall vest in and belong to her, and shall not be liable for the
debt, default, or contract of her husband. The wife w ith her children,
if a n y . is entitled to twelve m onths’ support o ut of th e estate of her
deceased husband. The husband is bound to support and maintain
the wife, and his consent is presum ed to her agency in th e purchase of
necessaries. The wife’s separate property is n ot liable for debts con­
tracted by her as agent of h er husband in th e ordinary support of hep
self and children, b u t by special contract in her own capacity, and
n ot as agent for her husband, she could bind her separate estate, for
th a t purpose. A m arried woman can dispose of her property by will.
M o rtg a g e s . Mortgages are only security for debts. * They may
embrace property in the m ortgagor’s possession, or to which he has
a right of possession. They m ay cover a stock in bulk, b u t changing
in specifics, and after acquiring property. No p articu lar form It
necessary, b ut it m ust be cleared th a t the Instrum ent Indicates a lien,
describes th e property and specifies the d eb t it secures. Mortgages
on land are n o t good against dower, and a wife cannot waive her
dower as against this lien. Mortgages m ust be executed and attested
in the sam e m anner as deeds, except th a t in m ortgages on persona)
property, only the official witness is necessary. Mortgages with power
of sale are valid in Georgia. Hom estead and exem ption may be
waived In the m ortgage. All m ortgages on personal property must
be recorded in the county where the m ortgagor resides and th e prop­
erty is located. Mortgages on land m ust be recorded in th e county
where th e land is situated.
N o ta rie s. Commercial notaries, male or female, are appointed
for four years by the superior courts. T hey m ust have seals and are
authorized to a tte s t deeds and m ortgages, and m ake protest of com­
mercial paper.
N o tes a n d B ills of E x c h a n g e . (See Bills of Lading an d Promis­
sory Notes.) Prom issory 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 endorsem ent or w ritten assignm ent in the
same m anner as bills of exchange and promissory notes. Endorse­
m ents m ay be lim ited by express restrictions. Acceptances of bills
m ust be in writing. Transferers of negotiable Instrum ents warrant
th a t they are th e lawful holders, have the right to sell, and th at the
Instrum ent is genuine. Bona fide purchasers of negotiable paper
taking th e same for value before due, and w ithout notice, are protected
against any defense, except: 1. Non est factum . 2. Gambling,
or Immoral or illegal consideration. 3. F raud in its procurement by
the holder. M aturity gives notice of dishonor. No days of grace

are allowed. Any draft, bill of exchange or check, drawn upon an
institution or person with which the drawer has not sufficient funds
on deposit to meet same, subjects the drawer to criminal liability
unless the deficit is. made up within 30 days.
P ro b a te L aw . (See A dm inistration of E states. Deeds and Mort­
gages.)
P ro te s ts . (See Bills of Lading and Prom issory Notes.)
R e co rd s. (See Deeds and Mortgages.)
R e d e m p tio n . There is no redem ption in this S tate under judicial
sales except in case of sale of property under ta x execution where
parties m ay redeem in twelve m onths.
R e p le v y . All property seized under attachm ent, distress, or other
sim ilar process, m ay be replevied. P roperty seized under process
and claimed by the. th ird p arty m ay be delivered over upon bond and
security for its forthcom ing to answer final judgm ent of decree.
R e v isio n . (See Courts.)
S ales. Sales m ay be m ade to pay debts, b u t any sale of stocks of
goods in bulk is deemed fraudulent unless th e seller delivers to the
buyer a list of all creditors and the am ount due each. I t shall then be
th e d u ty of the buyer to notify th e creditors of his purchase. This
notice m ust be mailed five days before completion of the purchase.
T ax es. Taxes are a lien upon all the property of th e debtor, real
or personal, and its lien is preferred as stated in section herein relating
to distribution of the estates. Bales of property for taxes are con­
ducted in the' same m anner as other judicial sales. One y ear in which
to redeem Is allowed.

B A N K IN G A N D COM M ERCIAL L A W S — IDAHO
W ilis. All persons of lull age and sound and disposing memory.
Including married women, m ay m ake wills, and dispose ol their estates.
Wills m ust be; executed In th e presence of three witnesses, all of whom
shall be present, m ust be called by the testa to r as witnesses, and m ust
.uni, and shall fortify th a t tney signed, in the presence ol the testator,
and in th e presence of eacn other. Wills m ust be in writing, except
nuncupative wills. Wills of citizens of other States, Where executed
according to th e laws of tn e S tate, and probated in solemn form in such
State, which dispose of real or personal property in Georgia, m ay be
admitted to probate in this S tate, when an authenticated copy of the
will is presented, accompanied by a certificate of the governor of such
State, under th e seal of th e S tate, th a t the official of the court where
such probate was m ade, had original jurisdiction of the subject-m atter.
Wills are probated in th e court of ordinary in the county where the
testator resides a t th e d ate of his death. All wills executed o u t of this
State by citizens of this S tate to dispose of property in Georgia m ust
be executed according to our law. A foreign will, executed according
to the law of Georgia, will constitute a m unim ent of title to real prop­
erty w ithout being probated in this S tate, when recorded on th e record
of deeds in th e county where the land lies, together with an exempli­
fication of record adm itting it to probate in another S tate, certified
aooordlng to th e A ct of Congress.

SY N O P S IS OF

T H E L A W S OF IDAHO
RELATING TO
B A N K IN G A N D COM MERCIAL U S A G E S
Revised by R ic h a r d s & H ag a. A ttorneys a t Law, Boise. (See Card
in A ttorneys' List.)
A ck n o w led g m en ts. All conveyances and other instrum ents
required to be acknowledged in this S tate m ust be acknowledged, if
withinHhe S tate, before a judge or clerk of a court of record, a county
recorder, a n o tary public, o r a justice of th e peace. If w ithout the
State, b u t w ithin th e United States, they m ust be acknowledged before
any such officer, or a commissioner of deeds for this State, or before
any officer authorized by th e laws of this S tate or T erritory to take
luch acknowledgm ent. If w ithout th e United States, they m ust be
acknowledged before a m inister or charge d'afiairs of th e U nited
States, resident and accredited1In 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 acknowledgm ent, if m ade before a justice of the peace,
when used in any county other th an th a t in which he resides, m ust
be accompanied b y a certificate, under th e hand and seal of the recorder
of the county in which th e justice resides, setting forth th a t such
justice, a t th e tim e of taking such acknowledgment, was authorized
to take th e same, an d th a t the recorder is acquainted with his hand­
writing. an d believes th a t th e signature is genuine. Proof of th e execu­
tion of an instrum ent m ay be m ade though it has n ot been acknowl­
edged. Form of m arried woman’s acknowledgment* the same as th a t
of a single person. (See Conveyances.)
A ctio n s. There is b u t one form of civil action In this S tate. An
action is commenced within the m eaning of the sta tu te when the
oomplaint is filed with th e clerk. Every action m ust be prosecuted
In the nam e of th e real p arty in Interest.
A ffid av its are used only to verify pleadings, to prove service of
summons, notice, or other paper, to obtain provisional remedy.
A liens. Code provisions as to holding property by aliens have
been repealed (Sess. Laws, 1913).
A r b itra tio n . Persons capable of contracting m ay subm it to
arbitration an y controversy which m ight be the subject of a civil
action between them , except a question of title to real property in
tee or for life.
A rre s ts. The defendant m ay 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 th e defendant is about to depart from the
State with in ten t 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 th e defendant has been guilty of
fraud in contracting th e debt, or in concealing or disposing of personal
property, for th e taking or conversion of which the action Is brought;
or when th e defendant has or is about to remove or dispose of his
property with in ten t to defraud his creditors.
A s sig n m e n ts a n d In s o lv e n c y . An Insolvent debtor m ay be
discharged of his debts by executing an assignm ent of all his property,
real an a personal, which, w ith a sworn inventory of property and
schedule of creditors, m ust be filed in th e district court. A t a cred­
itors’ meeting, held after th irty days’ notice given, one assignee is
appointed, and claims proved. Court will be set aside property
exempt, and issue order for direct paym ent of money, where no
mortgage or pledge had been given, or where such security, if given,
has been rendered neugatory by a ct of defendant. Assignee m ust
furnish bond, w ith two sufficient sureties.
A tta c h m e n ts . The plaintiff a t the tim e of issuing the summons,
or a t any tim e afterw ards, inay have the property of the defendant
attached as security for th e satisfaction of any judgm ent th a t m ay
be recovered, unless the defendant give security to pay such Judg­
ment. D efendant in a civil action for recovery of money or damages,
under a contract, express or Implied, m ay be arrested, when about
to depart from the S tate with in ten t to defraud, or when the debt
or obligation was fraudulently contracted.
B a n k s a n d B a n k in g . Idaho has a full and complete law upon
the form ation and regulation of banks and the form ation of banking
corporations. No banking corporation can have less th an five
directors. All banks, other th an national banks, are under the super­
vision of th e bank commissioner. The banker has a general Hen.
dependent upon possession, upon all property in his hands belonging
to a Customer for th e balance due- him from such customer in the
course of th e business, j (Sess. Laws 1911 am ended 1913.)
B ills of L a d in g . Uniform act recommended by the American

Bar Association.

B lu e Sky L aw . Idaho has a blue sky law governing^ corporations,
unincorporated associations and partnerships, domestic or foreign,
dealing in stocks, bonds, and other securities, excepting U nited States
bonds, State or municipal securities in Idaho, and Idaho real estate
mortgages. This law requires th e filing of various statem ents, accounts
and other papers, and m akes it unlawful to do business in the State
without compliance. (Sess. Laws 1913.)


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1575

C o lla te ra ls. No statu to ry regulation.
C o m m u n ity P ro p e rty . All property acquired after marriage
other than by gift, bequest, devise, or descent. Is com m unity property.
The personal earnings of the wife and the income from her separate
property are her separate property, f
C o n tra c ts . A w ritten instrum ent is presum ptive evidence of a
consideration.
C o n v e y an ces. Real estate is conveyed by Instrum ent in writing,
subscribed by the party or his authorized agent In writing. The

community property can be conveyed or incumbered only by husband 1
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.)
' ,
•
C o rp o ra tio u s. P rivate corporations m ay be formed by three (3)
or more persons, a t least one of whom m ust be a bona fide resident
of this State. Such corporation is formed by executing articles
of incorporation, containing: 1. The nam e of th e corporation 2.
The purpose for which it is formed. 3. The place where its prin­
cipal business is to be transacted. 4. The term for which it Is to
exist (not exceeding fifty years). 5. The num ber of its directors or
trustees, not exceeding fifteen, who m ust be stockholders of the
corporation. 6. The am ount of the capital stock and the num ber
of shares into which it is divided. 7. The am ount actually sub­
scribed, and by whom. The articles m ay provide for the election
of one-third of its directors annually. Railroad, wagon road, telegraph
and telephone corporations m ust also state In their articles: 1. The
kind of road, telegraph or telephone line Intended to be constructed.
2. The estim ated length of the road or line. 3. They m ay provide
In their articles the num ber of directors which shall constitute a quorum
tor th e transaction of business, the decision of the m ajority of such
quorum to be a valid act. 4. W hether meetings of the board shall
be held within or without the S tate. 5. W hether stockholders shall
be individually liable for debts of corporation. < Railroad corporations
m ust have subscribed, before filing articles, $1,000 per mile; wagon
road corporations, $300 per mile; telegraph corporations, $100 per,
mile, an a the articles m ust be verified by affidavit of president, secre­
tary , or treasurer named in articles, th a t such stock has been sub­
scribed. All articles of Incorporation m ust 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 w ith the Secretary
of state. All corporations, except insurance, non-productive mining
companies, co-operative telephone and irrigation companies, mustpay between July 1st and September 1st of each year, a license fee
based on the am ount of authorized capital stock, varying from $10 to
$150; a failure to m ake paym ent by September 1st entails a penalty,
of $10, and a failure to m ake paym ent by Novem ber 30th entails a
loss of Charter for domestic corporations and a loss of th e right to do
business within the S tate for foreign corporations. Between July 1st
and September 1st, all corporations m ust m ake an annual report, and
a failure to do so takes away such exemptions as are m entioned above;
C o rp o ra tio n , F o re ig n . Foreign corporations desiring to do busi­
ness in this S tate, m ay have aU th e rights and privileges of like domes­
tic corporation^, by filing w ith the secretary of state, 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.
C o u rts. Terms and Jurisdiction. The Judge of th e district court
of each of the judicial districts of th e S tate m ust annually fix the
tim e for holding the district court In th e several counties of his dis­
tric t; and he m ay hold such special term s as he deems proper and
necessary. District courts have original Jurisdiction in all civil cases.
P robate courts are held in each county continuously, and have
jurisdiction up to $500, in civil cases, and concurrent jurisdiction
with justice’s courts in aU criminal cases. Justices’ jurisdiction, $300.

Curtesy does not exist.
D ay s of G race abolished by sta tu te.
D e p o sitio n s m ay be taken before any judge, justice of the peace,
notary public, or U nited S tates commissioner, or any other person
agreed upon by th e parties, upon notice served upon th e opposite
party, stating the court, action, tim e, and place, and before whom
the same will be taken, or they m ay be taken upon commission issued
by the judge with Interrogatories attached.
D e v o lu tio n of P ro p e rty . (See Succession.)
D ow er does not'exist. (See Curtesy and Community property).
E m p lo y e rs a n d E m p lo y e s . All persons employing m echanics or
laborers in working mines, erecting or repairing buildings, construct­
ing canals, railroads, etc., m ust make, record, and publish a sta te ­
ment, under oath, setting forth the following: The nam e of the
owner of the premises where work is being done or upon which it is
Intended to begin work; the nam e of the person or com pany engaged
in or who contem plates engaging in work upon such premises; the
conditions under which such person or corporation is prosecuting
the work as agent, ownfer, etc., th e principal office of the owner and
the agent in this S tate: th e tim e and place where paym ent of laborers
and m echanics will be m ade. A copy of this statem ent m ust be
posted a t th e place where work is prosecuted.
E m p lo y e r’s L ia b ility L aw . Provides for damages' not to exceed

$5,000 for injuries to employee caused by employer’s negligence.
Workmen’s Compensation Act).

(See

E x e c u tio n s issue a t any tim e w ithin five years after judgm ent.
The only stay is by appeal, w ith secured bond. One year aUowed

for redemption from execution and foreclosure sale.

E x e m p tio n s . Hom estead, n ot exceeding $5,000, if declaration
of hom estead 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 m onths;
certain term anim als, etc., w ith food for six m onths; and w ater

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 equips
ments, not exceeding $250; team, wagon, etc., of drayman; seventyfive 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 Loaa

1576

BANKING AND COMMERCIAL LAW S—ILLINOIS

Association to th e value of $1,000; provided, such, person has no
hom estead: all benefits arising out of life insurance, represented by
an annual prem ium of $250; g.11 property of fire companies. All the
above property m ay be sold under foreclosure of m ortgage, which
includes sam e or execution issued on judgm ent for purchase price.
G a r n is h m e n t. Any personal property or credits in th e hands of
another, belonging to the defendant, Is subject to garnishm ent, as
are debts owing to him from another If due.
G u a r a n ty , T itle a n d T r u s t Co. May furnish abstracts, act as
surety, trustee, fiscal agent. P aid up capital of $25,000 required.
Capital deemed security for the perform ance of their duties.
H o lid a y s. January 1st, February 22nd, M ay 30th, June 15th,
(Pioneer D ay). F ourth of July, first M onday in September (Labor
D ay), October 12th, Thanksgiving Day, Christm as, Sundays and
any day on which a general election is held.
H u s b a n d a n d W ife. All the property of th e wife owned by her
before m arriage, and th a t acquired afterw ards by gift, bequest, or
descent, or th a t which she shall acquire w ith th e proceeds of her
separate property and her personal earnings and th e income from
her separate property, shall rem ain her sole and separate property, to
th e sam e ex ten t and w ith th e sam e effect as the property of a hus­
band similarly acquired. The wife has the m anagem ent, control, and
absolute power of disposition of her separate property, to the same
e x ten t and w ith like effect as a m arried m an m ay have In relation
to his real and personal property. The separate property of the
wife Is n o t liable for the debts of her husband, b u t is liable for her
ewn debts contracted before or after m arriage. There Is no estate
by courtesy or in dower. Marriage settlem ents are provided for,
and when properly executed and recorded m ay v ary th e s ta tu te
governing th e relations of husband and wife concerning property
rights. Minors m ay execute valid m arriage settlem ents.
I n t e r e s t . W here there is ho express contract In w riting fixing a
definite rate of interest, th e rate is 7 per cent per annum . Parties
m ay agree in writing for interest a t a rate n ot to exceed 12 per cent per
annum . Judgm ents bear interest a t the rate of 7 per cent per annum
J u d g m e n ts are liens on all real estate of debtor w ithin th e county,
from tim e of docketing, and m ay be extended to o th er counties by
filing tran script in recorder’s office.
Lien continues five years.
Ju stice’s court Judgm ents become liens when certified an d recorded.
May be revived by issuing execution w ithin lim itation.
L ie n s, M e c h a n ic s. Every person perform ing labor upon Eor fur­
nishing m aterials used In th e construction or repair of a n y ‘mining
claim, building, or o ther im provem ent, has a lien thereon Farm
laborers have Hen upon th e crop and products thereof, upon which
th ey bestow labor. All liens m ust be set forth by a statem ent in
writing, showing th e am ount due, th e facts connected with th e m atter,
th a t there are no credits due on th e claim, o r offsets against the
same: which statem ent m ust be verified by th e claim ant, and recorded
in th e office of th e county recorder. If on claim of original contractor,
w ithin nin ety days, If on claim of other persons, w ithin sixty days
from th e tim e of th e completion of th e structure th e com pletion of the
labor, o r th e furnishing of th e m aterials. Lien m ust be enforced by
su it w ithin six m onths, unless credit is given, expires a t all events
In two years.
L im ita tio n to S u its . Contracts n o t In writing and open accounts,
four years; instrum ents In writing, five years; judgm ents an d decrees,
six years. Revivor: Only by Instrum ent In writing; p a rt paym ent
does not.
M a rrie d W o m e n . All property, real or personal, acquired before
m arriage an d acquired after m arriage, by gift, bequest, devise, or
descent, and her personal earnings and th e income from her separate
property are th e wife’s separate property; all other property acquired
after marriage, common property: wife m ust record inventory of
separate personal property. N o estate as te n a n t by courtesy allowed
th e husband, nor dower to th e wife.
M in e s a n d M in in g . (Principal regulations under U nited States
S tatutes.) Q uartz locations m ay be 1,500 feet long and 300 feet on
each side of th e m iddle of lode. M onuments m ust be established a t
all exterior angles of claim. Claim should be tied to some natural
or perm anent m onum ent. Copy of location notice m ust be posted
a t discovery within three days after discovery. N otice of location
m ust be recorded within ninety days after location; w ithin sixty days
ten-foot shaft m ust be sunk or its, equivalent. Location notice m ust
contain nam e of locator, nam e of claim, date of discovery, dimensions,
distance from some perm anent, natural, or artificial object; nam e of
mining district, county, and state. Placer locations m ade in same
m anner as quartz locations, except th a t within fifteen days after
m aking location, locator m ust excavate n o t less th a n 100 cubic feet
for purpose of prospecting claim, and m ust record notice of location
w ithin th irty days after m aking location.
M o rtg a g e s . A real estate m ortgage m ust be acknowledged and
certified, an d recorded in like m anner as conveyances a n a deeds
of real property, and is foreclosed by action In th e district court.
C hattel M ortgages m ust be acknowledged as real estate m ortgages
and sworn to by th e m ortgagor th a t th e sam e Is m ade in good faith
w ithout any design to hinder, delay, or defraud creditors. M ust be
filed and a m inute record m ade by recorder, unless m ortgagee has
possession. Survives as long as the debt. M ortgages are discharged
b y a satisfaction duly executed and recorded, or b y entry on m argin of
th e record, witnessed by recorder.
N e g o tia b le I n s t r u m e n t s . Negotiable Instrum ents are governed
by th e rules of th e Uniform Negotiable Instrum ent Law, as recom­
m ended b y th e A m erican B ar Association. (See Laws 1903, p. 380.)
N o ta rie s, when requested, to dem and acceptance and paym ent
of foreign, domestic, and inland bills of exchange or piom issory
notes and p rotest the sam e for non-acceptance and non-paym ent;
exercise such other powers and duties as b y 'th e law of nations and
commercial usage, or by th e laws of an y other T erritory, S tate, govern­
m ent. or country m ay be performed by notaries. A ttach acknowl­
edgm ents p r proof of powers of attorney; mortgages, deeds, grants,
transfers, an d o ther instrum ents of writing executed by any person.
Give certificate of such proof or acknowledgm ent, to tak e depositions,
affidavits, an d adm inister oaths and affirmations in all m atters Incident
to duties of the office. To keep a record of all official acts; when
requested, and upon paym ent o f his fees therefore, to m ake and give
a certified copy of any record in his office; to provide and keep an
official seal, on which m ust be engraved his nam e, th e words “ N otary
P ublic,” an d th e nam e of th e county for which he is commissioned
To authenticate w ith his official seal all official acts. T he commission
is good throughout the State.
P o w e r o f A tto r n e y . Powers of atto rn ey for grants of real estate
and to execute a m ortgage m ust be In writing, subscribed, acknowl­
edged or proved, certified and recorded as other instrum ents affecting
real property. Powers of atto rn ey which have been recorded m ust
be revoked by revocation in writing, acknowledged, proved, certified,
and recorded th e sam e as original power.
P ro b a te L aw . P robate courts have jurisdiction to open and
receive proof of wills and adm it them to proof; to g rant letters testa­
m entary an d guardianship and revoke sam e; appoint appraisers of
estates, compel executors, etc., to render accounts; order sale of prop­
erty of estates and m inors; order paym ent of debts due from estates,
order an d regulate distribution of property o r estates; compel atten d -


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ance of witnesses and prdduotion of all instrum ents pertaining
estates a h a property or m inors, a n a m ake such orders as m ay be n rrr.
■ar? to exercise all powers conferred. Proceedings of this court «3»
oonftrhea the same as courts of general Jurisdiction a n a like force k w
to its records.
w
P r o te s t. . (See Notaries.)
R e c o rd s. All deeds, m ortgages, real and chattel, and instrument«
affecting the title to lands m ust be recorded. ^Inventory of the
separate personal estate of a m arried woman when recorded, become?
prim a facie evidence th a t th e property therein enum erated is her
separate property. In case of levy of attachm ent upon real estate a
copy of the writ, w ith a copy of the notice of levy attached thereto
m ust be filed in th e office of the county recorder.
R e d e m p tio n . P roperty m ay be redeemed w ithin one year after
Kile, on paying purchaser am ount paid on sale and 10 per cent addi­
tional. P roperty m ay be redeemed by successive redem ptions»
w ithin sixty days from last redem ption, and within one year from
sale, by paying an additional 4 per cent. In cases of tax sales, the
owner m ay redeem in three years.
R e p le v in . A ction of, m ust be brought w ithin th ree years from time
It accrues. Plaintiff m ay sue for th e possession w ithout claiming
im m ediate possession, or he m ay claim im m ediate possession a t time or
commencing suit or afterw ard. Affidavit showing th a t plaintiff Is the
owner, th e detention, the unlawfulness of th e detention, eto., and bond
w ith sureties required to obtain im m ediate possession. Defendant may
execute undertaking, w ith approved sureties, for th e retention of the
property, and th a t it will be forthcoming, subject to th e order of the
court in which the action is pending, and thereupon retain th e possm■lon of th e property Involved.
S eals. The distinctions between sealed and unsealed instruments
are abolished. W ritten contracts presum ptive evidence of con­
sideration.
^
S u ccessio n t o P ro p e rty . If decedent leave spouse an d one child
each entitled to one-half of decedent’s separate property, both real and
personal; if more th an one child, surviving spouse gets one-third and
rem ainder In equal shares to surviving children. In th e case of
com m unity property, th e surviving spouse takes all th e property!
subject to th e right of testam entary disposition of one-half tnereof'bv
th e decedent. (See Wills.)
*
T a x e s. The locus of property for tax atio n relates to th e second
Monday of January, if w ithin th e S tate, and If n ot to the d ay of assess­
m ent, and is a lien from and after th a t date. I f one half of taxes be
paid by first M onday of January th e rem aining half m ay be paid
by first M onday of July, following. Six per cent penalty added for
delinquency and delinquency certificate bears interest a t 12 per cent
from date of delinquency. T he owner h as tw o years from th e date
of said certificate to redeem therefrom , and if he does n o t redeem the
county or th e assignee of th e certificate m ust bring su it n o t less than
th irty days nor more th a n n in ety days a fter th e expiration of said
two years to foreclose th e tax lien.
Proceedings are th e sam e as on
foreclosure of m ortgage, an d owner is allowed one year from the sale
in which to redeem before th e sheriff’s deed can be given.” (See also
Chaps. 36 and 151 Sess. Laws 1917.)
T r u s t C o m p a n ie s . (See G uaranty Companies.)
W are H o u se R e c e ip ts T he Uniform W arehouse Receipts Act,
recommended by th e American B ar Association.
W ills. Every person over th e age of eighteen years, and of soand
m ind, m ay m ake a will. E very will, other th a n a nuncupative will,
m ust be m writing, and every will o ther th an an olographlo and a
nuncupative will, m ust be executed by th e testa to r subscribing thereto
or some person by his direction, which m ust be done In th e presence
of two attestin g witnesses, each of whom m ust sign bis nam e and
sta te th a t th e testa to r requested him to witness th e testa to r’s signa­
ture, and th e testa to r m ust also declare in the presence of th e wit­
nesses th a t such Is his last will an d testam ent. One-half of com­
m unity property m ay be disposed of by will to his, her or th eir children,
b u t n ot to exceed one-fourth to a parent or parents of either spouse.
W o rk m e n ’s C o m p e n s a tio n A ct. See C hapter 81 Session Laws

SYNOPSIS OF

T H E L A W S OF ILLINO IS
RELATING TO

BANKING AND COMMERCIAL USAGES
P repared and Revised by Messrs. M tjsq b a v e , O p p b n h e i m & L ee,
A ttorneys a t Law, Chicago. (See C ard in A ttorneys’ List.)
A c k n o w le d g m e n ts. Of deeds of real estate and other instruments,
m ay be taken before th e following officers: W ithin this S tate before
a m aster in chancery, notary public, U nited S tates commissioner,
county clerk, justice of the peace, any court of record having a seal
or any judge, justice, or clerk thereof. W ithout this S tate, and within
the United States, its territories, dependencies, or the D istrict of
Columbia, before a justice of th e peace, notary public, m aster in chan­
cery, U nited States commissioner, commissioner to tak e acknowledg­
m ents of deeds, m ayor of a city, clerk of a county, or before.any judge,
justice, clerk or deputy clerk of th e supreme, or district court
of th e U nited States, or before any judge, justice, clerk or deputy
clerk, prothonotary, surrogate, or registrar of th e supreme, circuit,
superior, district, county, common pleas, probate, orphans or surro­
gate court of any of th e States, Territories, or dependencies of the
justice, clerk or deputy clerk of th e supreme, or district court of
the U nited States, or before any judge, justice, clerk or deputy clerk,
prothonotary, surrogate, or registrar of th e supreme, circuit, supe­
rior, district, county common pleas, probate, orphans or surrogate
court of any of th e States, Territories, or dependencies of th e United
States. In any dependency of th e U nited States, such acknowl­
edgm ent or proof m ay also be taken or m ade before an y commissioned
officer in the m ilitary service of th e United States. W hen such
acknowledgment or proof is m ade before a notary public, United
States.
In any dependency of th e United States, sufch ac­
knowledgment or proof m ay also be taken or m ade before any com-

BANKING AND COMMERCIAL LAWS—ILLINOIS
missioned officer in th e m ilitary service of the U nited States. When
such acknowledgment or proof is m ade before a n otary public, United
States commissioner, or commissioner of deeds, it m ust be certified
under his seal of office. I f taken before a m ayor of a city, it m ust be
certified under th e seal of the city; if before a clerk, deputy clerk,
nrothonotary, registrar, or surrogate, under the seal of his court;
if before a justice of th e peace, or a m aster.in chancery; there m ust
be added a certificate of th e proper clerk under th e seal of his office,
setting forth th a t such person was a justice of the peace or m aster
in chancery a t th e tim e of taking such acknowledgment or proof.
An acknowledgment or proof of execution m ay be m ade in conformity
with the laws of th e State, .T erritory, dependency, o r district where
it is made. W ithout th e 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 an y m ayor or chief officer of. any city or town having a seal,
or before a n otary 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 m ar­
ried woman m ay be m ade and certified as if she were single. An
acknowledgment taken b y any one interested in the conveyance is void.
A ctions. Form s of action and pleadings are substantially as a t
common law except in justice courts and the municipal court of Chi­
cago, wherein th e practice has been much simplified. A non-resident
is required to give a bond for costs.
A d m in is tra tio n o f D e c e d e n ts’ E s ta te s . L etters testam entary
issue to executor nam ed in will, if he be a resident. I f there be no
will, or no executor named, or th e executor is disqualified or refuses
to act, adm inistratibn is granted to surviving husband, or wife, next
of kin, or some com petent person. The surviving husband or wife,
or the person nom inated by him or her, has preference. I f none of
the above nam ed applies within sixty days from death of deceased,
then adm inistration is granted to th e public adm inistrator of the proper
county. The adm inistrator m ust be a resident of the State. A
foreign executor or adm inistrator, w ithin th e U nited States, m ay
prosecute suits to enforce claims or to sell lands to pay debts. The
executor or adm inistrator m ust file an inventory w ithin three m onths
from th e date of his appointm ent and m ust fix upon a term of couft,
within six m onths from th e tim e he qualifies, for the adjustm ent of
claims, and publish notice thereof. The claim ant should produce
and file his verified claim, which, if n ot objected to. m ay be allowed
without further evidence. I f objected to, th e claim is set down for
trial. I f th e claim is n o t presented a t th e tim e fixed upon, it m ay
afterwards, within one year, from th e date of the issuance of letters
of adm inistration, be filed w ith the clerk, whereupon a summons
issues against th e executor or adm inistrator, and th e m atter is heard
at a subsequent term . All claims not exhibited within one year
from granting of adm inistration are barred. Claims are classified
as follow?: 1. Funeral expenses and cost of adm inistration. 2.
Widow’s Or children’s award. 3. Expenses of last illness, other th an
physician’s bill, and dem ands due household laborers or servants of
deceased for labor. 4. D ebts due common school or township funds.
5. Physician’s bill for last illness. 6. T ru st funds. 7. All other
debts. Claims have priority of paym ent in th e above order.
A ffidavits. W ithin this S tate oaths and affirmations m ay be
administered b y any judge, justice of the peace, m aster in chancery,
clerk of a court^police m agistrate, or notary public, in their respective
jurisdictions. W ithout th e State th e oath • or affirmation m ay be
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.
A lie n s .' T he present law went into effect July 1, 1897. I t does
not affect th e rights of aliens as to personal property, who still take
the same as citizens. I ts provisions are subject to treaties m ade by
the U nited S tates w ith foreign countries. All aliens, subject to cer­
tain restrictions mentioned in th e act, m ay acquire and for a limited
time hold real estate situated in this S tate by deed, devise, or descent,
and m ay transfer, devise, or encumber it.
A rrest a n d B a il. No person can be imprisoned for debt unless
upon refusal to deliver up his estate for th e benefit of his creditors
in such m anner as shall be prescribed by law, or in cases where there
is a strong presum ption of fraud.
A ssig n m e n ts. The operation of the Illinois Act relating to
voluntary assignments for the benefit of creditors has been suspended
by th e national bankruptcy law.
A tta c h m e n ts . A creditor, resident or non-resident, whose claim
is due, m ay bring attachm ent in a Court of record if the am ount
exceeds $20, and in justice court for any am ount not exceeding $200,
on any of th e following grounds: 1. W here the debtor is a non-resident
of this S tate. 2. W here th e debtor conceals himself, or stands in defiance
of an officer so th a t process can not b e served upon him. 3. W here the
debtor has departed from this S tate w ith th e intention of having his
effects removed from this State. 4. W here th e debtor is about to depart
from this S tate w ith th e intention of having his effects removed from
this State. 5. W here th e debtor is about to remove his property from
t.Viia s ta te to th e injury of such creditor. 6. W here the debtor has,
within two years preceding th e filing of th e affidavit required, fraudu­
lently conveyed or assigned his effects, or a p a rt thereof, so as to hinder
or delay his creditors. 7. W here 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 th e
debt sued for was fraudulently contracted on th e p a rt of th e debtor,
provided th e statem ents of th e debtor, his agents or attorney, which
constitute th e fraud, shall have been reduced to writing, and his signa­
ture attached thereto b y himself, agent, or attorney. The creditor
must give bond in double th e am ount of th e claim. Real estate or
personal property m ay be attached or funds garnished. The property
or funds m ay be released by the debtor giving a forthcoming bond, or
entering into a recognizance in court to pay th e judgm ent.
B a n k s. U nder th e sta te constitution stockholders have a double
stock liability, and every bank m ust m ake, under oath, and publish
each quarter a full and accurate statem ent of its affairs. Banks m ay
be formed under th e sta tu te for th e purpose of discount and deposit,
buying and selling exchange, and doing a general banking business,
except th e issuing of bills to circulate as money; m ay loan on both
personal an d real estate security, and m ay accept and execute trusts.
The stockholders a t th e annual meeting on the first M onday of each
January (unless some other date be fixed by the by-laws) elect the
directors. The directors m ust furnish to the S tate A uditor each year
a list of stockbolders and such other information as he m ay require.Each director m ust own ten shares of stock. Directors are required
to hold m onthly m eetings. Any director, officer, or employee making
a false statem ent as to th e affairs of th e bank, w ith intent to deceive,
may be punished by imprisonm ent. No bank can begin business
until th e Auditor has issued his certificate th a t its stock has-been
fully paid; an d such certificate has been filed w ith th e Recorder of
Deeds of th e C ounty where th e bank does_ business. T he Auditor
m ay withhold his certificate If be be not satisfied as to the character
and standing of th e directors and officers. The president and cashier
th irty days after organization m ust file w ith the Recorder of Deeds a
certified list of stockholders and the holdings of each, and thereafter
record all transfers. No transfer of stock releases stock liability.

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1577

Banks are examined under th e direction of th e A uditor a t least once,
each year. A bank can hold only such real estate as is necessary for
its banking house, and such as m ay be acquired in th e collection of
its debts. No more th an 15 per cent of the capital stock and surplus
can be loaned to one person, firm, or corporation, b u t discounts of
bills of exchange drawn against actual values, and commercial paper
discounted for parties actually owning th e same, do n o t come within
this provision. A violation of this provision does n ot im pair th e
claim, b u t renders the directors and officers assenting to th e sam e
personally liable for any loss incurred thereby. A loan can n o t be
m ade to the president or any officer or employe, unless approved by
the Board or Directors. T he minimum am ounts provided for th e
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 im pairm ent of th e capital stock th e Auditor m ay
require assessment of stockholders or a reduction of th e capital. If
he shall deem the bank is being conducted in an unsafe, fraudulent
or illegal manner, he m ay file a bill for an injunction, dissolution and
receiver, b u t such a bill can be m aintained only in th e nam e of the .
Auditor. Upon deficiency of assets, th e court m ay require, in such a
suit, th a t th e receiver proceed against th e stockholders on their stock
liability. There are provisions for consolidation, change of nam e and
voluntary dissolution. A banker is liable to fine and im prisonm ent
if he receive a deposit after he knows th e bank has become insolvent
and thereby the depositor suffers loss.
.
One drawing and delivering a check, draft, or order on a bank w ith
intent to defraud, and knowing a t th e tim e th a t he had n ot sufficient
funds in or credit w ith the bank to pay the check, d raft or order in
full, is. guilty of a misdemeanor and is subject to a fine of $1,000, or
imprisonm ent for one year, or both.
B ills of L a d in g . The Uniform Bills of Lading Law is in force in
Illinois.
C h a tte l M o rtg ag es. N o m ortgage, tru s t deed, or other conveyance
of personal property having th e effect of a m ortgage or lien, is valid
against th ird persons, unless possession be delivered to ,a and rem ain
w ith, th e grantee; or th e instrum ent provides for th e possession of the
p roperty to rem ain w ith th e grantor, and th e instrum ent is acknowl­
edged and recorded. T he instrum ent m ust be acknowledged, in coun-i
tiesh av in g a population of less th an two hundred thousand, before a
justice of th e peace, police m agistrate, a clerk or deputy clerk of a
municipal court, or county judge of th e county in which th e m ortgagor
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 th e clerk or deputy clerk of the municipal court
in the district where the m ortgagor resides. I f th e m ortgagor is a
non-resident of the State, the m ortgage m ay be acknowledged before
any officer authorized by law to take acknowledgments of deeds.
After acknowledgment th e instrum ent m ust be filed for record w ith
th e recorder of the county in which th e m ortgagor resides when the
instrum ent is executed, d r, in case of a non-resident of th e S tate, then
in th e county where the property is situated. T he m ortgage is a
valid lien until the m aturity of the entire debt or obligation, n ot
exceeding three years from th e filing of th e m ortgage, and m ay be
renewed for one year. A note secured by chattel m ortgage m ust
sta te on its face th a t it is so secured, otherwise th e m ortgage is void.
A m ortgage m ay be released on th e m argin of th e record, or by a release
deed. A m ortgage on a stcck of goods perm itting m ortgagor to retain
possession and buy and sell is void as to creditors.
C o m m e rc ia l P a p e r. (See Negotiable Instrum ents.)
C o n d itio n a l S ales and tike agreements, including, generally,
leases, reserving title or lien in seller who parts w ith possession, are
n ot valid in this State as to purchasers or parties acquiring liens
while the property rem ains in the possession of th e vendee or lessee,
C o n s ig n m e n ts. Agreements to sell on consignment are valid.
I f a commission m erchant, or p a rty selling on commission, converts
th e property consigned, or after dem and fails to account for th e pro­
ceeds, he is subject to fine and imprisonm ent, and* liable ¿for double
th e value of th e property so converted.
C onveyances. See Deeds.
C o rp o ra tio n s for pecuniary profit m ay be organized for any lawful
purpose except banking, insurance, real estate brokerage, operation
of railroads, and loaning money. T he m ethod of forming a corporation
is as follows: From three to seven persons execute and acknowledge
a statem ent giving the nam e of proposed corporation, th e object, its
capital stock, num ber of shares (each n ot to be less th an $10 nor'
more th an $100), location of principal office, and duration /n o t exceed­
ing ninety-nine years); which statem ent is filed w ith th e Secretary
of State. Upon the filing of t h e statem ent th e Secretary requires the
paym ent of th e license fee, which is $30 for all companies, having a
capital stock of $2,500 and under, $50 for am ounts between $2,500
and $5.000, and $1.00 additional for each $1,000 of capital stock
in excess of $5,000. Upon receiving the license to organize, subscrip­
tions are obtained, and after the entire stock is subscribed, th e com­
missioners call a meeting of th e subscribers, ten days’ w ritten notice
being required', to elect directors. In all elections of directors the
right of cum ulative voting is reserved. Voting m ay be by proxy.
A director need n ot be a stockholder, nor a resident of th e S tate.
T he commissioners then m ake a full report of th e proceedings to the
Secretary of State, verified by a m ajority o f th e commissioners, and
include a copy of the notice for the first meeting of stockholders, a
copy of the subscription list, a statem ent of th e am ount of th e capital,
not leSs th an one-half actually paid in, th e am ount of such capital
not paid in, w hat disposition has been m ade of stock subscribed and
not paid, and if an y proportion of the capital has been paid in property,
the same shall be appraised' by said commissioners, and th ey shall
report fair cash value thereof, and th e names of directors or m anagers
elected and their respective term s of office. The Secretary of S tate
thereupon issues a final certificate of incorporation, to which £s attached
copies of all papers filed w ith him. T his certificate m ust be filed w ith
th e Recorder of Deeds in th e county of the principal office of th e Com­
pany. The Com pany is then fully organized and m ay proceed to
business.
Corporations can hold only such real estate as is required for thehbusiness. T hey cannot hold stock of other corporations, b u t they
m ay buy and sell their own stock if they a ct in good faith.
Stock m ay be attached or taken on execution; b u t where it has been'
sold or pledged in good faith and the certificate delivered, it is not
liable to execution except as to any excess over th e am ount for which
it has been pledged. E ach stockholder is liable for th e debts of the
corporation only to the extent of th e am ount th a t rem ains unpaid
upon th e stock held by him . No assignor o f stock is released from this
liability by the assignment, b u t he remains, jointly liable w ith the
assignee. A purchaser in good faith, w ithout notice, of stock issued
as fully paid is protected. Stock m ay be paid for in property other
than money, b u t th e property can be taken only a t its fair cash m arket
value. No person holding stock as collateral security can be subjected
to a stockholder’s liability. The pledgor h as a right to vote th e stock.
If the indebtedness of a corporation exceeds its capitax stock, tfie
directors arid officers assenting thereto are personally liable to creditors
for such excess. E very stockholder has the right a t all reasonable
times, by himself or attorney, to examine th e books and records of
the company a corporation organized for th e purpose of accepting
and executing tru sts m ay be appointed assignee or trustee by deed,
and executor, guardian, or trustee by will, and any court m ay appoint
such com pany receiver, assignee, guardian, conservator, executor.

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BANKING AND COMMERCIAL LAW S—ILLINOIS

ad ministrato r, or other trustee, provided siich appointm ent apply
to th e _estate only, and n ot to th e person. Corporations are taxed
op their tangible property, real and personal, within the S tate, and
also upon th e fair cash value of their capital stock, including franchi­
e s , over and above the assessed value of their tangible property.
Shares of stock of domestic corporations, whose tangible property or
capital stock is taxed, are n ot subject to taxation in th e hands of owners.
Foreign Corporations doing business in this S tate are subject
to all th e Labilities, restrictions, and duties imposed on domestic
corporations or like character, and have no otfa.Gr or greater powers
B u t a foreign corporation authorized by its charter to invest and loan
money m ay do so here. This does not include, however, banking
powers and privileges. An Act requires a foreign corporation desiring
to do business m Illinois to m ake application to the Secretary of State,
signed and sworn to by th e President and Secretary, stating w hat
business such corporation proposes to pursue under its charter, the
am ount o f capital stock, w hether it is transacting or it intends to
transact, business in any other sta te or country, the proportion of its
business intended to be carried on in Illinois, the am ount paid in
upon its capital stock, w hat property and assets, and an estim ate of
th e value thereof. Will be employed in th e business in Illinois, if any
of its capital subscribed has not been paid in, w hat disposition is to
be m ade thereof, the names of the President, Secretary, and Directors
and their residences, where its principal office in Illinois will be located
and th e nam e and address of some attorney in fact upon whom sery ic e c a n be had in all suits commenced in this State; and, if required
b y th e Secretary of State, th e nam es and residences of all stockholders
as shown b y its records. I t m ust file with th e Secretary of S tate a
copy of its charter or articles of incorporation. Before any foreign
corporation shall be authorized to do business in this S tate it m ust
pay to th e Secretary of S tate upon the proportion of its stock repre­
sented by its property and business in Illinois, fees equal to those
required of similar corporations formed under the laws of this S tate.
E very such foreign corporation neglecting to comply w ith this law is
subject to a penalty of not less th an $1,000 and n ot exceeding
810,000. to be recovered before any court of com petent jurisdiction,
and in addition to such penalty if any such foreign corporation shall
fail to comply with the law it can m aintain no suit either a t law or
in. equity upon any claim, legal or equitable, w hether arising out of
contract or to rt, in an y court of this State.
.C o u r t s .. Supreme court (seven judges); four appellate courts
(interm ediate court of appeals, three judges each) ; circuit courts (in
Cook C ounty also superior court of equal jurisdiction); criminal
courts; county courts (which also exercise probate jurisdiction in
counties having less th an 70,000) ; probate courts (in counties having
over 70,000) ; municipal courts (Chicago has a municipal court with
a chief justice and twenty-five associate judges and special practice),
and justice courts. ■ ■ >
■
D ays o f G ra c e are abolished. (See Negotiable Instrum ents.)
D eeds conveying land should be signed, sealed, and acknowledged
by grantor. Scrawl seal is sufficient. No subscribing witnesses are
required. • S tatutory forms of w arranty and quit claim deeds and
mortgages are provided. T he words employed are (1) conveys and
w arrants, (2) conveys and quit claims, (3) mortgages and w arrants.
No deed releases the right of hom estead unless it contains a clause
substantially as follows: “ H ereby releasing and waiving all rights
under and by virtue of th e hom estead exemption laws of th e State
of Illinois, m which case th e certificate of acknowledgment should
contain th e clause, “ including th e release and waiver of the right
of hom estead.” To release dower the husband or wife m ust join in
th e conveyance, except in the case of a m ortgage for purchase money;
otherwise th e husband and wife m ay convey as unm arried. Deeds
and other instrum ents affecting real estate should be recorded in th e
county where the real estate is situated; until so recorded th ey are
Void as to creditors and subsequent purchasers w ithout notice.
D e p o sitio n s. I n chancery cases if th e witness resides in the
county, depositions m ay be taken on five days’ notice; otherwise on
ten days’ notice and one day in addition for every fifty miles. A t
law, on like ten days’ notice, where the witness resides in another
county or is about to depart from th e state. Where th e witness
resides out of the county or state, the deposition m ay be taken before
a notary public or Commissioner on a commission issued on ten days’
notice, either on w ritten or oral interrogatories; one day additional
notice of th e tim e and place of taking the deposition being required
for each one hundred miles. The attendance of a witness can n o t be
compelled before a notary public or commissioner in this S tate under
a commission issued from a court of record in another state.
D e s c e n t a n d D is tr ib u tio n . P roperty in this State, real and
personal, of residents or non-residents dying intestate, descends and
is distributed as follows: 1. To the children and their descendants
equally, th é descendants of a deceased child or grandchild fairing
th e share of their parents in equal parts. 2. When there is no child,
nor descendant of a child, and no widow or surviving husband, then
to th e parents, brothers, and sisters and their descendants equally,
allowing to . th e 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
th e real estate and th e whole of the personal estate goes to th e widow
or surviving husband absolutely, and the other half of the real estate
descends as in other casus 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
C urtesy). 5. I f there is no 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
p arts to th e next of kin in equal degree (computing by the Civil Law),
there being no representation among collaterals, except w ith descen­
dan ts of brothers and sisters, and no distinction being m ade between
kindred of th e whole and th e half blood. 6. In case of a widow or
surviving husband, and no kindred, th e whole estate goes to the widow
or surviving husband.
D ow er. A surviving husband has dower (i. e., life interest in a
th ird p a rt of all lands whereof deceased was seized of an estate of
inheritance during marriage) th e sam e as a widow. E quitable estates,
an d land contracted for before death, are subject to dower. Dower
m ay be barred b y jointure assented to; by devise, unless widow or
surviving husband renounces benefit of devise within one year from
d ate of letters of adm inistration; by divorce as to th e p a rty in
fau lt; and by abandonm ent coupled w ith adultery. There is no
dower in land as against a purchase-money lien. T he husband or
wife m ay renounce any devise under the will of th e other and take,
if there be children, dower and one-third of personal estate, or, if no
children, one-half of both real and personal estate absolutely.
E x e c u tio n s. (See Judgm eiits and Executions.)
E x e c u to rsNa n d A d m in is tr a to rs . (See A dm inistration.)
E x e m p tio n s . There is a hom estead exemption to the extent of
$1,000. I t m ay be extinguished by conveyance joined in by husband
an d wife properly acknowledged. (See Deeds.) T he following
personal property is exem pt: 1. T he necessary wearing apparel,
Bibles, school books, and fam ily pictures. 2. One hundred dollars
w orth Of other property, to be selected by th e debtor, and in addition.


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^ d e b t o r ,s th e head of a fam ily and resides w ith the same
$300 worth of other property, to be selected by th e debtor. Exemp­

tions can n ot be claimed out of partnership property. The wae-M
of a wage earner being the head of a fam ily and residing with
same are exempt from garnishm ent to the am ount of $15 per week;
F ra u d s , S t a t u t e of. The following contracts should be in writine1. A promise or an executor or adm inistrator to answer any debt nr
damages out of his own estate. 2. A promise to answer for the debt
default, or miscarriage of another. 3. An agreem ent m ade in con­
sideration of m arriage. 4. An agreem ent n ot to be performed within
one year. 5. Aqy contract for the sale of lands, or any interest
therein for a longer term than one year. 6. Express tru sts relating
to real estate.
A contract to sell or a sale of any goods or chose«
m action of the value of five hundred dollars or upwards is not entorcible by action, unless the buyer accepts p a rt of the goods or chose«
m action so contracted to be sold or sold, and actually receives the
same, or gives something in earnest to bind the contract, or in narfe
paym ent, or unless some note or m em orandum in writing of the
contract or sale .be signed by the p arty to be charged or his agent in
th a t behalf. The act applies to sales for future delivery and to goods,
to be obtam ed or m anufactured by the seller, b u t not to sales of goods
to be m anufactured on special order if they be n ot suitable for sale
to others m the usual course of business.”
G a r n is h m e n t. T he funds or property of a debtor in the possession
or a third p arty m ay be garnished in an attachm ent suit, or in a separate
proceeding after judgm ent has been obtained against th e nrincinai
debtor. (See A ttachm ents.)
™
i H o lid ay s, L eg al. January 1st, February 12th, February 22d
M ay 30th, July 4th, October 12th, December 25th, first Monday in
September (Labor D ay), Thanksgiving Day, and election days; also
every Saturday from 12 o’clock noon to 12 o’clock m idnight. Where
holidays fall on Sunday, the day following.
■H u s b a n d a n d W ife. (See M arried Women.)
I n te r e s t. Extrem e contract rate, 7 per cent; legal rate, 5 per cent.
Interest is allowed a t the legal rate on moneys after they become dueon any bond, bill, promissory note, or other instrum ent in writingon money loaned or advanced for the use of another; on money due
on the settlem ent of an account, from the date of ascertaining the
balance; on money received to th e use of another, and retained witho u t'th e owner’s knowledge; and on money withheld by an unreason­
able and vexatious delay of paym ent. Judgm ents or decrees draw
interest a t 5 per cent. Penalty for contracting for more th an 7 per
cent is th e loss of the entire interest, and only the principal sum can
be recovered. A w ritten contract, wherever payable, m ade in this
S tate between citizens of this State and of a foreign S tate (or secured
by a m ortgage on lands in this State) is controlled by the law of this
S tate as to the rate of interest, and th e penalty for usury. Usury
m ust be specially pleaded. B ut corporations cannot claim a for­
feiture of legal interest on account of usury. In all computations
of tim e, and of interest and discounts, a m onth is considered to mean
a calendar m onth, and a year twelve calendar m onths, and a day
the thirtieth p art of a m onth. A foreign corporation is subject to
th e sam e penalties for usury as a citizen of this State.
J u d g m e n ts a n d E x e c u tio n s. A judgm ent is a lien on real
estate situated in th e county where th e judgm ent is rendered, for
seven years from its date. I f an execution is n ot issued on a judgment
within one year the judgm ent ceases to be a lien. A transcript of a
judgm ent in another county m ay be filed and thereupon becomes a
hen upon real estate of the defendant in the county where filed and
execution m ay issue thereunder. An execution becomes a lien on
personal property from the tim e it is delivered to th e officer to be
executed. All goods and chattels, including money and stock in a
corporation, m ay be levied on. Personal property m ay be sold under
execution on ten days’ notice. A forthcoming bond m ay be given
by the defendant to the officer. A third p a rty claiming th e property
levied on m ay have a trial as to th e right of property in th e county
court. Judgm ents m ay be confessed by a debtor or his authorized
attorney without process in term tim e or vacation.
x.
L ie n s, A landlord has a lien for ren t 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 th e keeping thereof.
Garage keepers are entitled to liens on automobiles, parts and acces­
sories, for keeping, repairing, m aterials furnished -thereto, and the
expenses bestowed thereon a t th e request of the owner, or th e person
having the possession thereof. Agisters and persons keeping, yarding,
and feeding domestic animals have a lien therefor. All persons furnish­
ing supplies, or doing work for any railroad organized under th e laws
of this State, necessary for the construction, m aintenance, operation,
or repair of th e road, have a lien therefor on all th e property of the
company, which is good as against m ortgages and other liens acquired
after the commencement of the delivery of supplies, or th e doing of
the work. A ttorneys have liens on all demands, claims, and causes of
action of their clients, after th e service of notice upon th e adverse
party. Contractors and sub-contractors, including architects, super­
intendents, timekeepers, etc., have liens on any real estate, interest
therein, or im provements thereon, for all kinds of labor and services
performed, and m aterials furnished for the erection of any building,
or th e im provement of any real estate, or thing connected therewith..
L im ita tio n s . In personal actions as follows: Libel and slander,
one year; actions for dam ages for injury to persons, two years (where
death results, one year after d e a th ); for false im prisonm ent, maliciousprosecution, for a sta tu to ry penalty, for abduction, seduction, or
criminal conversation, tw o years; actions on unw ritten contracts,
express or implied, on awards of arbitration, to recover damages for
injury to property real or personal, to recover possession of persona!
property, or damages for the detention of conversion thereof, and
all civil actions n ot otherwise provided for, five years; actions onbonds, promissory notes, bills of exchange, w ritten leases, writtencontracts, or other evidences of indebtedness in writing, ten years;
b u t any paym ent or new promise to pay in writing renews th e right of
action on such instrum ent for ten years from the tim e of such payment
or promise. A domestic judgm ent of a court of record, tw enty years;
of a foreign court of record, five years.
L im ite d P a r tn e r s h ip . T here are sta tu to ry provisions as to theform ation of limited partnerships, b u t such partnerships are not
common in Illinois.
M a rrie d W o m en . A m arried woman m ay sue. be sued, or defend,
as if she were unm arried. When th e husband deserts, th e wife may
prosecute or defend in his name. The husband has th e same right
dpon th e desertion of the wife. T he husband is n ot liable for th e
wife’s to rts except in cases where he would be jointly responsible
if the m arriage did n ot exist. The husband or wife is n o t liable for
the debts of the other incurred before marriage, or for th e separatedebts %of each after m arriage, except th a t th e husband and wife are
jointly and severally liable for th e expenses of th e fam ily and theeducation of their children. ' The wife m ay contract as if unmarried,
except th a t she can not carry on a partnership business w ithout theconsent of her husband, unless he nas abandoned her. or is insane,'
or confined in the penitentiary. She m ay receive and use her ownearnings free from th e interference of th e husband or his creditors.
N either th e husband nor th e wife can recover com pensation for any
labor performed or services rendered for th e other. She m ay own.

BANKING AND COMMERCIAL LAWS—INDIANA
In her own right real and personal property obtained by descent,
gift, or purchase, and m anage, sell, and convey it to th e sam e extent
th at the husband can property belonging to him ; b ut no transfer of
personal property between the husband and wife living together Is
good as against third persons, unless acknowledged and recorded as
chattel m ortgages are required to be. A married woman who w ithout
her fault lives ap art from her husband m ay m aintain an action for
reasonable support and m aintenance. T he wife m ay insure her
husband’s life. She m ay become surety for th e husband. She m ay
execute a will, if oyer eighteen years of age, a t which age she attains
majority.
M o rtg ag es. Real estate m ortgages should be executed and ac­
knowledged th e same as deeds. The wife m ust join to bar
dower, except in m ortgages for purchase-money. T rust deeds are
often preferred to m ortgages because, of th e facility in th e transfer
of the security and, in case of non-resident creditors, in obtaining a
release, th e trustee geneially being a resident. Real estate m ortgages
may be released upon th e record or by release deed. M ortgages and
trust deeds m ust be foreclosed by scire facias or by regular foreclosure
suit in a court of chancery. In extrem e cases, where th e m ortgaged
property is clearly of less value th an th e debt secured and th e m ort­
gagor is insolvent, there m ay be a strict foreclosure which cuts oft the
right of redem ption, in which case the m ortgagee takes th e property
in discharge of th e debt. In other cases, after decree of foreclosure,
the officer designated to execute th e decree delivers a certificate there­
of to th e creditor and files a copy thereof for record. The debtor m ay
redeem w ithin twelve m onths, or if no judgm ent creditor redeems,
them w ithin fifteen m onths; a t the end of which tim e th e real estate
is sold to satisfy th e decree and costs, w ith six per cent interest. The
holder in due course of a note secured by a m ortgage or tru st deed on
real estate in Illinois stands in no better position, so far as the enforce­
ment of his security is concerned, th an the payee or original holder;
but this doctrine does n ot apply to corporate bonds payable to bearer.
N eg o tiab le I n s t r u m e n t s . The “Uniform Negotiable In stru ­
ments L aw ” adopted in New York and m ost of the.other states is in
•force in Illinois, as to all commercial paper executed after July 1,
1007, w ith the following modifications; 1. All Promissory Notes,
Bonds, Due Bills, and other instrum ents in writing, whereby one
promises or agrees, to pay any sum of m oney 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. E xcept as to Promissory N otes payable in m oney due diligence
must be used by th e holder against the maker, if he be a resident
and solvent, by suit a t first term of C ourt after m aturity, in order t©
hold th e endorser. 2. Accommodation paper m ay be issued after
m aturity, if such was th e intention of the accommodating party.
3. The addition of words of assignment or guaranty to a blank indorse­
ment does not affect th e signature as an indorsem ent unless otherwise
expressly stated. 4. T he aefenses of fraud and circumvention in
the execution of negotiable paper, or th a t the consideration arose
out of a gambling transaction prohibited by sections 130, 131, and
136 of our Criminal Code, m ay be asserted as against a holder in due
course. 5. T he fact th a t a depositor m akes his note payable a t a
bank does n o t authorize the bank to pay it out of his funds on deposit.
6. An alteration of an instrum ent avoids it only when it is m aterial or
fraudulent, and m ade by th e holder. 7. A promise in writing to accept
a bill m ade either before or after it is drawn is deemed an actual accept­
ance as to th e person receiving th e bill on th e faith thereof. 8. Section
137 of th e Uniform Negotiable Instrum ents Law, providing th a t the
destruction b y th e drawee of a bill of exchange left w ith him for accept­
ance, or his refusal to retu rn the sam e 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 om itted from the
Illinois act.
P ro b a te L aw . (See Adm inistration of E states.)
R e c o rd in g A cts. In counties having a population of less th an
60,000, th e clerk of th e circuit court is ex officio the recorder. In
other counties a “ recorder of deeds” is elected. As to w hat instru­
m ents m ust be recorded, see respective titles.
R e p le v in . The action lies for personal property wrongfully de­
tained. The action m ay be brought in any county where the property
Is, or where any of th e defendants reside or m ay be found. Before
the execution of th e writ, the plaintiff, or some one in his behalf,
must give th e officer a bond w ith sufficient security (a real estate
owner of th e county is generally required) in double th e value of the
property.
S ales in B u lk . Sales o f th e m ajor p a rt orbali of a stock in trade,
chattels or fixtures not in th e 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 am ounts
due each, an d th e buyer, five days before paym ent, gives notice to
each creditor personally or by m ail of the contem plated purchase.
T axes. A lh real and persona] property in this State, including
moneys, credits, bonds, stocks, investm ents^ 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 M ay 1st of the ensuing
year; after which tim e penalties are added. There is an Inheritance
Tax Law, th e rates varying according to the relationship of the heir,
devisee, or legatee, and th e am ount of th e legacies, ranging from 2 per
cent in th e cases of widow and children, as to legacies exceeding $20,000,
to 10 per cent on large am ounts bequeathed to persons n ot related
to th e deceased.
W a reh o u se R e c e ip ts. T he Uniform W arehouse Receipts Law
Is in force in Illinois.
W ills. E very m ale over twenty-one, and female over eighteen.
Is com petent to m ake a will. I t m ust be signed by the testato r or
by some person in his presence and by his direction, and attested in
his presence a t his request by a t 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 th e subscribing witnesses are dead, secondary evidence of the
execution is admissible. The will is proved, after notice to heirs and
legatees, In th e county (or probate) court, and m ay be contested, in
chancery, within on© year after its probate. Wills or authenticated
copies, affecting estate within this State, duly proved outside of this
State, in accordance w ith the law of th e S tate where executed, accompanied with a certificate of the proper officer of th a t fact, m ay be
recorded here. Wills executed and published out of this State m ay
be adm itted 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 n ot the will has been first probated in another
state or county. The Uniform Foreign Probate Act is in force m
Illinois. All original wills, after being filed, ffiust rem ain in the office
of th e county (or probate) court. r Children inay be disinherited.


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SYNOPSIS OF

T H E T A W S OF IN D IA N A
RELA TIN G TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by Messrs. P ic k e n s , M o o r e s , D a v idson
and P ic k e n s , A ttorneys a t Law, Indianapolis,
_
(See Card in A ttorneys’ List.)
A c k n o w le d g m e n ts . All conveyances ot real estate, except leases
for less th an three years,
m ust be in writing, and acknowledged an d
recorded, or they will n ot bind
third parties. W ithin th e S tate
acknowledgments m ay be taken before a judge or clerk of a court of
record, justice of the peacé, auditor recorder, notairy public, m ember
of the general assembly, or mayor of a city, and on other states and
territories before the like officers, or a commissioner of deeds for
Indiana.
In any foreign
country, before a m inister, charge d ’affaires
or consul of the United
States.
If such acknowledgment or proof
is in some other th an the English language, or Is n ot attested by such
official seal, it m ust be accompanied by the certificate of an officer
of the U nited States, to the effect th a t it is duly executed according
to th e laws of such foreign country, and th a t the officer has legal
authority to certify to .the proof or acknowledgment and th e m eaning
of his certificate, if m ade in a foreign language. Wife m ust 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
edgm ent of wife necessary in order to convey her inchoate interest
in husband’s lands, although she m ust acknowledge. T he certifying
officer should state the date when his commission expires. A c tio n s. The distinctions between law and equity are abolished.
The sta tu te provides b u t one form of action. Pleadings are governed
by code. Non-resident plaintiffs m ust give bond to secure costs.
A d m in is tr a tio n o f E s ta te s . E xcept in Marion County, which
has a separate probate court, th e circuit court has exclusive probate
jurisdiction. In cases of intestacy letters are granted in following
order, 1. Widow or widower. 2. N ext of kin. 3. Largest resi­
dent creditor. L etters of adm inistration shall be granted in the
county, 1. W here Intestate was in h ab itan t a t tim e of death. 2.
W here, not being inhabitant of the S tate, he leaves assets. W here
an intestate, not being an inhabitant, shall die o ut of th e S tate,
leaving assets in several counties, letters m ay be granted in any one
of th e counties in which such assets m ay be a t tim e of death; and
the adm inistration first lawfully granted shall extend to all of the
estate. Letters cannot Issue to a m arried woman w ithout her hus­
band’s consent in writing. Such consent makes husband jointly liable
w ith wife.
Preference Is given to foreign executor of a decedent
n ot an inhabitant of S tate, if, before letters are granted in th is State
it appears th a t proper letters have been granted in .another state,
except there be resident creditors, legatees and heirs entitled to dis­
tribution, who are inhabitants of th e S tate. No action shall be
brought against an estate for any claim against th e decedent; b ut
th e holder thereof, whether th e claim be due or not, shall file a suoclnct and definite statem ent 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 th e claim ant, his agent, or attorney,
th a t the claim is ju st and wholly unpaid. If claim be secured by a
lien, the lien shall be particularly set forth. The claim m ust be filed
within one year from the notice of the adm inistrator’s appointm ent,
or claim ant m ust pay costs; and if n o t filed a t least th irty days
before the final settlem ent of th e estate, It shall be barred, except
th a t heirs-, dêvlsees and distributees shall be liable to the ex ten t of
th e property received by them , to any unpaid creditor who six m onths
prior to the final settlem ent was insane, an infant, or o ut of the
S tate,—suit to be brought w ithin one year of removal of disability,
and if upon claim of non-resident creditor, within two years of the
settlem ent of the estate.
Aflfidavi ts m ay be taken before any officer qualified to tak e acknowl­
edgments (see above). Date of expiration of officer’s commission
m ust be certified.
A lien s. Resident aliens who have declared th eir intention to
become citizens, m ay acquire, hold, and enjoy real estate, and m ay
convey, devise, m ortgage, o'r otherwise encum ber th e same. In like
m anner and w ith the same effeot as citizens of this S tate. Aliens,
w hether resident or not, m aÿ own real estate n ot exceeding 320 acres;
lands in excess of th a t am ount they m ust convey within five years or
suffer escheat as to such excess.
A rre s t fo r D e b t. D efendant in a civil action m ay be arrested and
held to ball In th e am ount claimed, a t any tim e before judgm ent, on
affidavit th a t he Is about to leave th e S tate, taking w ith him property
subject to execution, with in ten t to delay or defraud th e plaintiff.
Bond is required of plaintiff.
A s s ig n m e n ts a n d I n s o lv e n c y . Any debtor m ay m ake a general
assignm ent of all property in tru st for benefit of all bona fide creditors.
This tru st is adm inistered under th e direction of th e county court.
Dividends are allowed on all claims allowed by th e trustee or court.
Debtor is not discharged from his liabilities.
A tta c h m e n t m ay Issue against th e property of a non-resident or
foreign corporation, and against any who m ay have disposed of, or be
about to dispose of, property, to cheat, hinder or delay creditors, or
against a creditor who conceals himself so th a t summons can n ot 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 attachm ent, before final judgm ent, are required
to furnish a like affidavit and bond, and all share pro ra ta In the
proceeds of the attached property. The wages of a resident house­
holder, not exceeding one m onth a t an y one tim e, are exem pt so long as
debtor remains in such em ploym ent. I t Is a m isdem eanor to send
claims out of the S tate to be collected by attachm ent, or garnishm ent,
when creditor, debtor, and person owing for earnings intended to
be reached are all within th e jurisdiction of the court of this S tate.
The collection of claims so sent m ay be enjoined.
B a n k s , P riv a te . Act of 1907 (in effect Deo. 1, 1907), regulating
private banking applies to any one who m ay use th é word “ bank"
in his business. Capital m ust be a t least $10,000, n ot more th an oneth ird of. which m ay be invested in the bank building. All real estate
m ust be held in nam e of bank. Bank cannot invest in real estate
except in realizing on doubtful d aim . S tatem ent m ust be filed with
state auditor showing copy of articles of partnership acknowledged
(one of th e partners to 'b e resident of th e sta te ); location, am ount
of capital, n et worth of partners to be double capital paid in, names
of omoers. List of officers m ust be posted in bank. Two reports of
resources and liabilities are called for each year by au d ito r and pub­
lished in local newspaper. E xam ination of bank m ade a t least
annually b y auditor. S tatem ent of property held in tru s t by bank
m ust be filed in county recorder's office. Depositors have lien on
assets. Jurisdiction over all persons interested is obtained by
process served on officer in charge.

1580

BANKING AND COMMERCIAL LAW S—INDIANA

B a n k s , S a v in g s. Governed by a general s ta tu te which regulates
In m inute detail th e Investm ents and conduct of business. Savings
banks m ay purchase, hold, an d convey real estate for the following
purposes, and none other: F o r th e location of banking house; real
estate m ortgaged to it in good faith for money loaned, or upon which
It shall have purchased a m ortgage; real estate tak en upon judgm ents
an d decrees on behalf of th e bank, o r purchased to prevent loss on
claims held by th e bank.
B a n k s , S ta te , Regulated by a general banking law. The auditor
of th e sta te appoints a state bank exam iner who shall n ot be a
director or other officer of the bank, and shall have power to m ake
a thorough exam ination into all the affairs of the bank, and, in doing
so, to exam ine any of th e officers and agents thereof on o ath . The
exam iner reports in detail the condition of th e bank from tim e to
tim e. The state banks m ust m ake n ot less th a n five reports each
year, verified by th e president, or o th er m anaging agent, which
reports m ust exhibit th e resources and liabilities a t th e close of busi­
ness on any p ast day to be by th e auditor specified. The report so
required m ust be published in a newspaper where the bank is estab­
lished, or, if there is no new spaper in th e place, th en in one pub­
lished nearest thereto in th e same county or an adjoining county.
The au d ito r m ay require special reports from an y bank, whenever
in his judgm ent, it shall be necessary in order to a full knowledge of
its condition. Any bank failing to m ake such report shall be subject
to a pen alty of $100 for each day th a t it delays to m ake and transm it
th e same. All banks are empowered to execute tru sts and act as
trustees.
B ills o f E x c h a n g e a n d P ro m is s o ry N o tes. No grace is allowed.
Damages for protest on bills upon an y person a t an y place o u t of
this S tate, b u t w ithin the U nited States, 5 per cent on bills drawn
upon an y person a t an y place w ithout th e U nited S tates, 10 p ercen t.
(See N egotiable Instrum ents.)
C h a tte l M o rtg a g e s . C hattel m ortgage on personal property left
In th e hands of th e m ortgagor with power to sell m ust stipulate th a t
th e money received by th e sale be applied to th e paym ent of the
m ortgage debt, and should be draw n in th e form of an absolute bill
of sale; m ust be acknowledged in th e sam e m anner as prescribed for
th e acknowledgm ent of deeds, and recorded w ithin ten days from
execution, an d In the county where the m ortgagor resides. An
assignm ent of goods, by way of mortgage, where such goods are not
delivered to th e mortgagee, shall n ot be valid against any other person
th a n th e parties thereto, unless such m ortgage shall be acknowledged,
and recorded w ithin ten days after th e execution thereof. Where
delivery of th e chattels to the mortgagee occurs a t th e tim e, record
is unnecessary. A mortgagee of household goods oan n ot sell m ort­
gaged property except under a judicial proceeding in the circuit or
superior court. For certain restrictions on th e lending of money
on m ortgage of household goods, see th e statutes.
C o n v ey an ces. All conveyances, mortgages or leases for more th an
three years shall be recorded and take priority according to tim e of
filing as against good faith purchaser, lessee or m ortgagee. Lands in
this State m ay be taken, held, conveyed, devised, or passed by
descent, by or from any citizen of th e United S tates; or by or from
any alien (see Aliens), with some provided exceptions as to descent
or devise. Lands which m ay have come by descent or purchase to
the wife of an alien, m ay be held, conveyed, devised and passed by
desoent by and from her, notw ithstanding the fact of her residence
with her husband in a foreign sta te or country.
E xcept bona-fide leases for a term n ot exceeding three years, con­
veyance of lands, or of any interest therein, m ust be b y deed, sub­
scribed, and acknowledged by the grantor or by his atto rn ey in fact.
The jo int deed of a husband and wife is sufficient to pass the lands
of the wife. E xcept in cases of mortgages, conveyances in tru st,
conveyances to husband and wife, and cases of estates vested in
executors or trustees, as such, and so held by them in jo in t tenancy,
all conveyances and devises of lands, or of any Interest therein, m ade
to two or more persons, shall be construed to create estates in com­
mon, and n ot in jo in t tenancy, unless it shall be expressed therein
th a t th e grantees or devisees shall hold th e same in joint tenancy
and to th e survivor of them , or it shall m anifestly appear from tenor
of instrum ent, th a t It was Intended to oreate an estate in joint tenancy.
A deed of release or quit-claim shall pass all th e 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 m ust be so
expressed in th e deed. L iability on lineal and collateral w arranties
is expressly abolished; a covenant or agreem ent of any person leaves
heirs and devisees answerable thereon only to the ex ten t of property
descended or devised to them . Any conveyance of land worded—
“ A. B. conveys and w arrants to C. D. (here describe the premises)
for th e sum of (here Insert th e consideration),” or “ A. B. quit-claim s
to C. D. (here describe th e premises) for the sum of (here insert the
consideration),”—th e same being dated, and duly signed and acknowl­
edged by th e grantor,—shall, in th e one case, be a conveyance In fee
simple to th e grantee, his heirs and assigns, w ith covenant from the
g ran to r for himself and his heirs and personal representatives th a t
he is lawfully seized of the premises, has good right to convey the
same, and guarantees the quiet possession thereof, th a t th e same are
free from all Incumbrances, and th a t he will w arrant and defend the
title of th e same against all lawful claims; and shall, in the other
case, be deemed to be a good and sufficient conveyance in quit-claim
to th e grantee, his heirs and Assigns. Any m ortgage of lands worded
—"A. B. m ortgages and w arrants to C. D. (here describe the premises)
to secure th e repaym ent of (here recite th e sum for which the m ortgage
is granted o r the note or other evidences of debt, or a description
thereof, sought to be secured, also th e date of the repaym ent)” —-the
same being dated and duly signed and acknowledged by th e grantor
—is a sufficient m ortgage to th e grantee, his heirs, assigns, executors
and adm inistrators, w ith w arranty from th e grantor and his legal
representatives of title perfect and unincum bered in the grantor.
W hen a deed purports to convey absolutely any estate in lands, b u t
is m ade, or Intended to be m ade, defeasible by force of a deed of
defeasance, bond or o ther Instrum ent for th a t purpose, th e original
conveyance shall n ot thereby be defeated or affected as against any
person o th er th a n the m aker of th e defeasance, or his heirs or devisees,
or persons having actual notice thereof, unless th e instrum ent of
defeasance shall have been recorded, according to law, within ninety
days after the date of said deed. E very conveyance of m ortgage of
lands, of of any interest therein, and every lease for more th a n three
years, shall be deemed fraudulent and void as against any subsequent
purchaser, lessee or mortgagee in good faith and for a valuable con­
sideration, unless recorded in th e recorder’s office of th e county where
such lands are situated. (See Acknowledgments, M arried Women.)
C o rp o ra tio n s . Domestic Corporations. Corporations are cheated
only under general statu tes. This is done b y m eans of articles of
association, filed w ith th e secretary of state, and th e recorder or clerk
of th e county, as provided by sta tu te. The liability of stockholders
varies according to th e nature of th e corporation in question and the
law under which it was organized. In th e corporations which were
in existence Novem ber 1, 1851, and which accepted th e term s of the
a c t of March 6, 1883, stockholders are liable, in case of Insolvency,
for a sum a t least equal to am ount of stock held a t tim e the debt
was. contracted. I n m ost corporations, stockholders who have paid
for th eir stock are n ot liable for debts of th e com pany. However,
th ere is liability in some cases for. labor and <services of em ployes.


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Shares of capital stock in a private corporation are subject to attach 1
m ent. Annual reports m ust be filed in June with the Secretary of
State.
'
Foreign Corporations. Agents of foreign corporations, before
entering upon th e duties of their agency in this S tate, shall deposit
in the clerk’s office of th e county, where they propose doing business
the power of attorney, or appointm ent, under which th ey act. They
shall also file a duly authenticated order, resolution or other sufficient
authority of the board of directors authorizing citizens or residents
of this S tate having a dem and against such corporation arising out
of any transaction in this S tate with such agents to maintain an
action In respect to the same in any court of this S tate of competent
Jurisdiction, and authorizing service of process on such agent, aid
th a t such service shall authorize Judgm ent and all other proceedings
against such corporation. By act of 1913, foreign corporations
m ust file w ith auditor of S tate certified copy of vote of directors
consenting to accept service of summons on auditor of State as sum­
mons on corporation. I f foreign corporation has no agent within
State, summons m ay be served on A uditor of State, who shall notify
corporation. C ontracts m ade by such agents shall not be enforced
in any court of this S tate until there has been a compliance with
the above provisions. Failure of a foreign corporation to comply
with these provisions will n ot bar—b u t will abate such action. Any
person who shall, directly or indirectly .receive or transm it money
or property to or for such corporation, or m ake any contract, or
transact any business for or on account of any such corporation
shall be deemed agent. This provision does not apply, however!
to persons acting as agents for a special or tem porary purpose or for
purposes n ot within the ordinary business, nor does it apply to
attorneys a t law. A ny person acting as agent of a foreign corpora­
tion, who shall neglect or refuse to comply w ith the foregoing pro­
visions, is liable to a fine in any sum n o t less th an $50. In 1879 it
was enacted th a t: Every foreign corporation now doing or trans­
acting, or th a t shall hereafter do or transact, any business In this
S tate, or acquire any right, title or Interest In or lien upon real estate
in this State, th a t shall transfer or cause to be transferred from any
court of this S tate to any court of the United States, save by regular
course of appeal after trial in the S tate courts, any action commenced
by or against such corporation In any court of this S tate by or against
any citizen or resident thereof: or th a t shall commence in any court
of the U nited States in this State, on any contract m ade in this
S tate, or liability accrued therein, any suit or action against any
citizen or resident of the S tate of Indiana, shall thereby forfeit ail
right and authority to do or tran sact business in this State, or hold
real property or liens thereon, and all contracts between such cor­
porations and citizens and residents of this S tate m ade after the
passage of this act shall be rendered void, as in favor of such cor­
porations, b u t enforceable by such citizen a t his election. The pro­
visions of th e foregoing section are m ade conditions upon which
such corporations m ay be authorized to do business, or hold titles to,
or liefis on, real, estate in this S tate. By the act of 1901, foreign
corporations are required to designate an agent in this S tate upon
whom legal process m ay be served; to have an office where proper
books of account m ay be kept. By act of 1907 foreign corporations
desiring admission to sta te m ust m ake verined statem en t to Secre­
ta ry of S tate showing: articles .of incorporation, business intended
to pursue, capital stock, proportion of its business carried on in this
S tate, am ount paid In on capital stock, and answers to other inter­
rogatories propounded by th e Secretary of S tate, and shall pay a
fee of $25 on first $10,000 of assets used In Indiana, $10.00 for each
additional $10,000. Annual report m ust be filed in Janu ary and fee
of $1 paid. Foreign corporations m ay n ot hold real estate except
such as m ay be necessary for proper carrying on of its legitimate
business.
C o u rts . Term s and Jurisdiction. The circuit court is th e only
court of original general civil jurisdiction In the S tate. I t has full
probate powers, except In Marion County, where there is a separate
probate court. Superior courts have been established in many
counties. Justice’s jurisdiction, $200. P a rty m ay confess Judgment
before a justice of th e peace for $300. W hen a w ritten obligation for
money binds more th a n one p a rty the justice of th e peace m ay Issue
rocess to constable of any county in th e S tate where p arty resides.
he suprem e court has no original Jurisdiction. I t sits a t Indianapolis.
The appellate court has final jurisdiction in m any cases.
D ay s of G race are no longer recognized.
D e p o s itio n s . Depositions m ay be taken anywhere In th e United
S tates w ithout a commission, before any judge, justice of th e peace
notary public, m ayor, or recorder of a city, clerk of a court of record,
or commissioner appointed by the court to take depositions. Per­
son taking deposition m ust n ot he of kin to either p arty or Interested
in the action. W hen taken outside of th e U nited S tates they shall
be taken pursuant to an order of the court, under a commission, with
such reasonable notice of the tim e and place of taking th e same as
the court shall require, and they shall be certified and returned by
th e commissioner in such m anner as the court shall direct. Notice
of the taking of the deposition should be served upon th e adverse
p arty or his attorney, specifying the cause, the court or tribunal of
trial, the tim e and place of taking, and th e nam es of the witnesses.
Reasonable tim e shall be allowed for the attorney so served to com­
m unicate w ith th e client, and for travel to the place of taking, exclud­
ing the day of service, of the taking, of and Intervening Sundays.
The deponent shall be first sworn according to law. He shall then
be exam ined by th e p arty producing him, and then by th e adverse
party, and then by the officer. If he see cause. The deposition shall
be w ritten down by the officer, by the deponent, or by some disin­
terested person, in th e presence and under the direction of th e officer,
and after th e same has been carefully read shall be subscribed by
him. The jollowlng facts shall be stated in a certificate to be annexed
by th e officer: 1. T h at th e deponent was sworn according to law.
2. By whom th e deposition was w ritten, and If w ritten by depohent
or some disinterested person, th a t it was w ritten in the presence and.
under the direction of th e officer. 3. W hether the adverse party
attended. 4. The tim e and place of taking, and the officer shall
sign and a tte s t th e certificate, and seal th e same, if he have a seal of
office. If he have no seal, his certificate shall be authenticated by
the certificate and seal of the clerk or prothonotary of an y court of
record of the county in which the officer exercises the duties of his
office. The officer taking the deposition shall seal the same in a
sufficient envelope and himself post, or express, or deliver th e same
to the clerk of the court in which the action is pending, endorsing
on the envelope the nam es of the parties and of the court and of
the witnesses whose depositions are enclosed. A djournm ents mayfbe
had from day to day after the deposition has been begun, and for
longer periods, upon w ritten consent of the parties, which written
consent m ust be attached to the deposition. A djournm ents should
be noted a t the place in the deposition when they occur. A narrative
form m ay be used. A witness identifying a w ritten instrum ent
should a tta c h it to his deposition, m aking it a p a rt of his answer.
D e s c e n t. The real and personal property of any Intestate shall
descend to his or her children equally; and posthum ous children
inherit equally with those bom before the death of th e ancestor.
Children of deceased children tak e th e share which would have
descended to th e fath er or m other; and grandchildren, an d more
rem ote descendants, and other relatives, lineal and collateral, Inherit
by the same rule, excepting th a t If the heirs are all grandchildren
they Inherit equally. W here there are no heirs as aforesaid, one-

P

BANKING AND COMMERCIAL LAWS—INDIANA
tiolf of th e estate goes to tn e fath er an a m other as jo in t tenants, pr
to th e survivor, and th e other half to th e brothers and sisters, and ,
tn the descendants of such as are dead, as ten an ts ;in common. ( If
there be n either fath er nor m other, th e brothers and sisters; and
the other descendants, tak e th e estate as ten an ts in common o r,
ner contra, th e fath er and m other as Joint tenants of th e survivor.
Kindred of th e half-blood Inherit equally w ith those of the whole­
fo o d in property purchased by the ancestor; otherwise, as to property
aoauired by gift, devise, or descent. Illegitim ate children inherit
from the m other same as if th ey were legitim ate, and vice versa.
Tenancy by th e curtesy and dower are abolished, and widows take
one-third of th e real estate in fee simple, unless tne property is w orth
over $10.000, in which case, as against creditors, she takes one-fourth
only- and where th e real estate is w orth over $20.000, one-fifth only
as against creditors, b u t as against other heirs she takes one-third
to fee simple, regardless of value, except where there is b u t one
child, in which case each inherits one-half. A second or subsequent
wife however, takes only a life estate in her husband’s lands, if there
be a child or children by a previous m arriage, and none by such
widow. O ther special provisions of th e sta tu te are too extensive to
set out. The estate of a person dying Intestate w ithout kindred
capable of inheriting will escheat to th e S tate for the support of the
common schools. , (See Taxes.)
D ow er. (See Married Women.)
E x e c u tio n s m ay Issue a t any tim e within ten years after juagment and are returnable in 180 days. From a court of record m ay
issue to any county in th e S tate. Are a lien on personal property
within th e county from th e tim e they are placed in hands of officer.
The liens upon personal p roperty a tta c h In th e order in which th e
officer receives them . W hen levy is upon real estate th e dates oj
the judgm ent control th e right to participate in the proceeds, and
they m ust be applied according to their priority. Personal property
taken in execution m ay be left w ith execution defendant by the
riving to th e officer of a delivery bond with sufficient surety; debtor
may, by giving sufficient freehold sureties, have a stay of execution
on any sum exceeding $100, for six m onths. W here the sum is less
than $100, th e stay is not so long, varying with am ount of Judgment.
Lands sold under, execution m ay be redeemed within one year by
the owner, mortgagee or person having a lien thereon, the owner
retaining possession during the redem ption year and being liable for
reasonable rents and profits in case of failure to redeem.
E x e m p tio n s . P ro p erty up to $600 is exem pt where debtoi is a
resident householder. Resident householder is entitled to exem ption
as well when in tran sit w ith his fam ily and property as when per­
manently settled. The debtor m ust file a schedule of all of his
property, and select th e property claimed, which is then appraised.
Contract waiving exem ption is void. Pension money in tra n sit to i
pensioner is exem pt, b u t when received by him and invested in other
property is no more so th an any other property. One m onth s wages
also exem pt if th e debtor is still em ployed.;
F ra u d . Assignments, in w riting or otherwise, of any property
made or suffered w ith Intent to hinder, or defraud are void as to the
persons defrauded. The question of fraudulent intent is a question
of fact.
Frauds—S ta tu te of. flffie following contracts, if enforcible in court,
must be In w riting and signed by the p arty to be charged: 1. To
charge an executor or adm inistrator, upon any special promise, to
answer damages o ut of his own estate. 2. To Charge any person,
upon any special promise, to answer for th e debt, default, or mis­
carriage of another. 3. To charge any person, upon any agreem ent
or promise, m ade in consideration of m arriage. 4. Upon any con­
tract for th e sale of lan d (except loan not exceeding the term of three
years). 5. Upon any agreem ent n ot to be performed within one
year from th e m aking thereof. 6. Sale of goods exceeding $50 in
value, unless p a rt paym ent or p a rt delivery be m ade. 7. Upon
any representation m ade concerning th e character, conduct, credit,
ability, trad e or dealings of any other person.
G a r n is h m e n t. (See A ttachm ent.) G arnishm ent is a remedy in
aid of attach m en t. Upon any personal action arising out of contract
any person m ay be summoned as a garnishee defendant upon an
affidavit th a t official has good reason to believe th a t any person
named has p roperty of th e defendant in his possession or under his
control, or th a t he is indebted to the defendant, or has control or
agency of money, property, credits, or effects; th a t he has any share
or interest in th e stock of any association or corporation, and all
money or property in th e hands of the garnishee defendant is bound
from th e tim e th e summons is served upon him. Resident house­
holders are entitled to an exem ption of $600 in garnishm ent pro­
ceedings, as in all other cases. Wages of non-residents, to the am ount
of $25, and of resident householders to th e extent of one m onth s
wages, are exem pt from execution so long as the defendant remains
in the employ of th e garnishee. Indiana claims can n o t legally be
sent or taken o u t of th e S tate for prosecution, and suits instituted
elsewhere in violation of this prohibition m ay be enjoined and the
offender be criminally prosecuted.
H o lid ay s. (See Bills of Exchange and Prom issory Notes.)
H u s b a n d a n d W ife. (See Married Women.)
I n h e r ita n c e T ax . (See T ax es,).
I n te r e s t. The legal ra te is 6 per cent, b u t interest m ay be taken
in advance. No agreem ent to pay a higher r a t e i s valid unless the
same be in writing, and in such case it is not lawful to contract for
more th a n 8 per cent. W hen a greater rate is contracted for, the
contract is void as to all interest in excess of 6 per cent, Is usurious
and illegal, and th e excess m ay be reoouped by th e debtor whenever
it has been reserved o r paid before th e bringing of th e suit. Interest
on judgm ents runs from th e date of th e verdict or finding, a t th e
rate specified in th e original contract, n ot exceeding 6 per cent, and
if no contract has been m ade 6 per cent is allowed.
J u d g m e n ts of courts of record are a lien upon all real estate of
defendant w ithin th e county for ten years. Judgm ent m ay be
obtained a t th e first term of th e court, after process has been served
on debtor ten days prior to the first day thereof. Judgm ent in justice
court becomes a lien on real estate of judgm ent defendant from tim e
of filing a tran scrip t in office of th e clerk of circuit court. A certified
copy of any judgm ent rendered by the circuit court of th e U nited
States for d istrict of Ind iana m ay be filed w ith the county clerk.
L egal H o lid ay s as to commercial paper are as follows: The first
day of th e week, commonly called Sunday; th e 1st day of January;
the 4 th day of Ju ly; th e 25th day of December; any day appointed
by the president or governor for public fasting or thanksgiving; 12th
day of F ebruary; 22d day of February; 30th day of M ay; first M on­
day of September; 12th day of October; and any election day; when
any holiday (other th an Sunday) comes on Sunday the M onday next
succeeding shall be th e legal holiday; Saturday afternoon, is a legal
half-holiday in th e city of Indianapolis and m ay be m ade so by act
of bankers in other cities of over 35,0 0 0 population.
L ien s. Liens are granted by sta tu te to attorneys; to persons
holding claims against w atercraft on account/ of supplies furnished or
work done; also for dem ands for damages arising out of freight con­
tracts, o r for willfulness or negligence of the m aster, owner, or agent,
or out of an y 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


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1581

keepers of livery stables and all persons engaged In feeding stock, for
the feed and care bestowed upon th e same, also to blacksm iths; also to
contractors, sub-contractors, mechanics, journeym en, laborers, and ail
persons performing labor or furnishing m aterial or machinery for
erecting, laboring, repairing or removing any house, mill, m anufactory
or other building, bridge, reservoir, system of water-works, or other .
structure, known as a mechanic’s lien; also to bailees and tradesm en
for their valid and reasonable charges in th e construction, repair,
or alteration of any article of value; also to the bailee or keeper or
personal property for any feed or care bestowed by him upon such
property; special lien for storage or repair of m otor cars, also to for­
warding and commission m erchants on goods which m ay have-rem ained
in store for one .year or more. Persons storing, furnishing supplies, ,
or repairing an automobile or garage owners have lien on autom obile,
which can be foreclosed within one year from failure of owner to paycharges. Judgm ents rendered in any county in th e S tate are a Hon.
upon the real estate situated in such county for a period of te n years
from the rendition thereof, and judgm ents rendered in the federal
courts are a lien upon any real estate in the S tate for th e sam e period.
Provision is m ade by statute, however, for the filing ip th e county where
th e real estate is situated of a transcript of any judgm ent rendered
in the U nited States courts. T he office of th e clerk of th e circuit court
in each county contains a public record known as th e lis pendens
record, in which notice of th e filing of com plaints to enforce liens-are
required to be recorded, and also in cases where real estate is seized by
attachm ent or éxecution. Unless so recorded th e bringing of suits
does not operate as a constructive notice.
L im ita tio n s to S u its. Actions for injury to person and character,
and for statu to ry penalty or forfeiture, two years ;t against public
officers relating to their official duties, and on p u b lic, im proveme n t .
assessments, five years; open accounts and contracts, n ot 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 w ritten
contracts for paym ent of money, ten years; actions n o t lim ited by
sta tu te, fifteen years; other Written contracts, judgm ents of'courts of
record and real aotiohs, tw enty years. Revivor: p a rt paym ent pr
new promise in writing. E xcept In favor of sureties, the sta tu te of
lim itation does not fu n'against the S tate.
M a rrie d W o m en control their real and personal property. g The
husband is liable for the wife’s debts contracted before m arriage to
the extent of the personal property he m ay receive from her, and no
further, and her lands are liable for such Indebtedness. A m arried
woman m ay devise her separate estate; m ay sell and transfer her separ­
ate përsonal property; carry on an y 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, th e same as a.
femme sole; and her husband is n ot liable for such debts, nor for
indebtedness created by the wife for Im provem ent of her separate
real estate. She can m ake leases of real estate for term s of three
years or less, and execute mortgages to secure purchase m oney, with­
out husband joining. She is bound by covenants of title in convey­
ances of her separate real estate. H er deed conveying her real estate,
her husband not joining, Is absolutely void. She m ay sue as a femme
sole for any dam age to her person or character. She is bound in
like m anner as principal on her official bond. She can n ot en ter into
any contract of suretyship, and such contract as to her, is wholly
void; and therefore a m ortgage on her separate property for a debt
for which she is mere surety indorser, or guarantor, is void: b u t if.
as an inducem ent to her contract, she m akes a sworn statem ent th a t
contract or m ortgage Is for her own benefit, in respect to her separate
estate, she is estopped from alleging her suretyship as against any
one having no knowledge th a t th e contract is one of suretyship.
She is entitled to hold as exem pt from execution her wearing apparel,
articles of personal adornm ent purchased by herself to th e am ount
of $200 in value, all jewelry, ornam ents, books, etc., which m ay have
been given her as presents; and other property to the am ount of
$300, except as against indebtedness for the purchase money there­
fo r A widow takes one-third of her deceased husband's real estate
in fee, and free from all dem ands of creditors, where th e estate does
not exceed $10,000; one-fourth, If under $20,000, and one-fifth, if
above th a t am ount. She also takes a child’s Interest in the per­
sonalty where the num ber of children does not exceed two, and where
there are more th an two her interest shall not be less th an one-third
of the whole of personalty after paym ent of debts, and in all cases
takes $500 without accounting, and m ay occupy th e dwelling and
forty acres of her husband’s land for a year, rent free. BUt the onethird of her real estate which the widow takes in fee, can not, upon
her m arrying again, be effectively conveyed or m ortgaged by her, if
there be a child or children, or their descendants, alive by the previous
m arriage. Real estate which husband and wife hold by title m ade
to them as husband and wife, is held as an estate by entirety; it can
not be taken for the debt of either; is n ot subject to the lien of a
judgm ent against either, except in case of the death of either or upon
divorce granted; when the estate is destroyed and becomes sum ect
to levy and sale; and a m ortgage thereof by them both for a debt
of the husband has no legal validity.
M o rtg a g e s . (See Conveyances.)
N e g o tiab le I n s t r u m e n t s are defined by C hapter 63 of th e Acts
of 1913. Section 1 provides th a t an instrum ent to be negotiable m ust
conform to th e following requirem ents:
1. I t m ust be in w riting and signed by th e m aker or drawer,
2. M ust contain an unconditional promise or order to pay a cer­
tain sum in money.
„
'
. ,,
3. M ust be payable on dem and, or a t a fixed or determ inable
future time.
4. M ust be payable to order or to bearer.
5. W here the instrum ent is addressed to a drawee, he m ust be
nam ed or otherwise indicated therein w ith reasonable certainty.
Its negotiability is n ot affected by a provision which authorizes
th e sale of collateral securities in case th e instrum ent is n ot paid a t
m aturity, or authorizes a confession «of judgm ent if th e instrum ent
be not paid a t m aturity, or waives th e benefit of any law intended for
th e advantage of th e obligor, pr gives th é holder an election to require
something to be done in lieu of th e paym ent of money.
To charge indorser notice of non-paym ent m ust be given to him a t
once, unless waived by him.
j
E very negotiable instrum ent is payable a t th e tim e fixed therein
w ithout grace. W here day of m atu rity falls on Sunday or a holiday,
instrum ent is payable on next succeeding business day. Instrum ents
payable on S aturday áre to be presented for paym ent on next succeed­
ing business day, except th a t dem and instrum ents m ay be presented
for paym ent before noon S aturday when th a t entire day is n ot a holiday.
In any case not provided for in the act th e law m erchant governs,
and all laws ih conflict are repealed.
Act does not apply to negotiable instrum ents m ade and delivered
before April, 1913.
P o w er of A tto r n e y m ust be executed and acknowledged, and (if
for th e conveyance of real estate, or to affect real estate) recorded, in
the same m anner th a t deeds are m ade. '
P ro b a te L aw . (See Adm inistration „of E states.)
P r o te s t. The sta tu to ry damages on such protest are 5 per cent,
on the principal of a bill of exchange, if. drawn or negotiated within’
this S tate, upon any person, a t any place óut of this S tate, b u t within

1582

BANKING AND »COMMERCIAL LAW S—IOWA

thei U nited States', and 10 per cent If upon an y person, a t an y place
w ithout th e U nited States.
R e p le v in . W hen an y personal property Is wrongfully taken or
unlawfully detained, or. If taken on execution or attachm ent, Is
claimed b y a th ird p arty , the owner or claim ant m ay bring an action
for possession thereof. He m ay claim Im mediate delivery upon
affidavit therefor, whereupon th e sheriff takes possession of the
property, an d If a delivery bond Is given on behalf of th e defendant
w ithin tw enty-four hours, th e property Is returned to him , otherwise
th e plaintiff m ay give bond and tak e the property; failing to do so
It Is returned to th e defendant. The plaintiff has tw enty-four hours
In which to file bond. Justices of th e peace have jurisdiction in
replevin suits involving property w orth $200 or less. Procedure Is
sam e before justice of th e peace, except th a t th e plaintiff m ust file
bond in all such cases. Replevin m ay also be had w ithout bond, by
allowing defendant to retain possession of property pending suit.
S u its . (See Actions.)
T a x e s. S tate, county, township, municipal, school, and road taxes
a tta c h as a lien on real estate on March 1st of each year, and penalties
a tta c h on first M onday in May in th e n ex t year. One-half of all
taxes m ay be paid w ithout penalty, if paid before first M onday of
M ay; o th er half, if paid before first Monday of November. Sales of
real estate for taxes are held on th e second Monday of February, and
all lands on which taxes are delinquent for two years are offered.
Owner has two years in which to redeem, by paying the am ount set
forth In th e certificate of purchase, with all subsequent taxes paid,
an d 10 to 25 per cent upon the whole sum, w ith legal Interest from
th e d ate of purchase or paym ent. Lands are sold for one year’s
delinquency, b u t the following year’s ta x (not y et delinquent) is
em braced in th e am ount of th e sale. An inheritance tax’, graduated
in am ount according to th e am ount involved, and th e relation of the
beneficiaries to th e decedent, is levied upon all intangible or tangible
proper of resident decedent, and upon tangible proper of non-resident
decedent. T ax applies as well to gifts m ade in anticipation of death,
to tak e effect a t th a t tim e.
W ills. N uncupative wills, where property of more th a n th e value
of $100 vis bequeathed, are n ot valid, except as to the personal property
an d'w ages of soldiers and sailors in actu al service: A nuncupative
will m ust be reduced to writing w ithin fifteen days a fter it shall have
been declared an d proved by two com petent witnesses who shall have
heard th e te sta to r request some of those present to bear witness
th ereto . No will in w riting is valid unless signed In th e presence of
tw o o r more witnesses by th e testato r, or by some one for him in his
presence, w ith his consent, and attested and subscribed by two or
more witnesses a t his request, arid in his presence and th a t of each
Other, will m ade before m arriage becomes void on marriage.

SYNOPSIS OF

T H E L A W S OF IO W A
RELA TIN G TO ]

BANKING AND COMMERCIAL USAGES
Revised by B. J. C ava n a g h , A ttorney-at Law, Des Moines.
(See Card in A ttorneys’ List.)
A c c o u n ts and C la im s of. Statem ents of account, for use In
oourt or for proof in th e settlem ent of estates of deceased and in
guardianship m atters, m ust be item ized and verified. A statem ent
of "balance,” or “ goods,” or "m erchandise” is n o t sufficient.
A c k n o w le d g m e n ts . All Instrum ents affecting real estate, includ­
ing m ortgages, deeds of tru st, powers of attorney relating thereto,
an d leases for more th a n one year, m ust be acknowledged or the
execution thereof proved, and th e instrum ents m ust be recorded in
th e proper office, so as to affect th ird parties. The sam e is also
tru e as to bills of sale, absolute or conditional, and chattel m ortgages
relating to personal property. Articles of incorporation m ust also be
acknowledged and recorded. The forms of acknowledgm ent and
th e officers, within and w ithout th e S tate, before whom such acknowl­
edgm ents m ay be ma’d e are prescribed by sta tu te.
A c tio n s . The common law form s of pleading are n o t used,
although th e common law forms the basis of procedure. Pleading,
praotlce, and procedure are statutory, and accord, in th e main,
w ith w hat is known as the reformed, or code procedure.
A d m in is tr a tio n of E s ta te s . W here an executor is not appointed
by will, adm instration shall be granted: 1. To th e spouse of the
deceased. 2. To the n ex t of kin. ' 3. To creditors. 4. To an y other
person whom th e court m ay select. Claims against the estate of a
deceased person are payable In th e following order: 1. Debts entitled
to a preference under the laws of th e U nited S tates. 2. Public
rates and taxes. 3. Claims filed within six m onths a fter th e first
publication of th e notice given by the exeeutors or adm inistrators
of th eir appointm ent. 4. All other debts. 5. Legacies and dis­
trib u tiv e shares. All claims of th e fourth of th e above classes n ot
filed an d allowed, or if filed an d notice thereof n o t served w ithin
twelve m onths from the giving of th e notice of ap p o in tm en t, are
barred, except as to actions against decedent pending In the district
o r suprem e court a t th e tim e of his death, or unless peculiar circumtances entitle th e claim ant to equitable relief.


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Federal Reserve Bank of St. Louis

Affidavits m ay be taken before any person authorized
to adm inister oaths in the sta te where taken. If taken without th«
S tate of Iowa, th e official character of the officer adminlsterlmi th2
oath should be evidenced in th e same way as the o K l character of
an officer taking depositions. (See Depositions.) Affidavits m av be
taken w ithin th e S tate for any lawful purpose, of one unwiUing to
voluntarily m ake an affldavlt.by filing a petition w ith an officer author­
ized to adm inister oaths, who m ay cause th e person to come before
S 8* ? aJ ? d*viji- * This proceeding is sta tu ta ry and m ust con­
form strictly to th e sta tu tes of Iowa.
oa
Affidavits for proving accounts and form : S tate o f . .
C ounty o f . ----- - . . . ss, I . ............... .being first duly sw orn,"on'oath
depose and say th a t I am (a m em ber ef the firm of
and
th a t said firm is) th e owner of th e account hereto attached", marked
exhibit A, and m ade a p a rt hereof, th a t th e sam e is correct in all
particulars and th a t th e articles nam ed therein were sold and delivered
to sa id ...................a t th e prices and tim es therein nam ed and agreed •
upon, and th a t said articles were reasonably of th e value charged
and th a t th e said account is due and unpaid. T h at there is no legal
set off or credit to th e sam e or any p art thereof except as herein stated
Subscribed and sworn to before me, by th e said.
this
day, etc.
.......................
A lien s. Non-resident aliens or corporations incorporated under
the laws of any foreign country or corporations organized in this
country, one-half of the stock of which is owned or controlled by non­
resident aliens are prohibited from acquiring title to or holding any
real estate in Iowa, b u t the non-resident alien widow, heirs, or devisees
of an alien or naturalized citizen m ay hold the same for tw enty years
and if n ot sold w ithin th a t tim e, escheats to the State. Allens may
acquire property of any kind within a city o r town or lands not exceed­
ing 320 acres or stock in any corporation for pecuniary profit and may
alienate or devise the same, b ut this law does not affect personal
property. A lien holder m ay acquire title to the property embraced
in such lien b u t real estate so acquired m ust be sold w ithin ten years
after title is perfected in an alien, otherwise It will escheat to the
S tate.
A rre s t. No person can be imprisoned for debt on either mesne
or final process, unless in case •of fraud. Debtors, however, m ay be
ordered to appear before a court or record‘wherein a judgm ent has
been rendered, and if the debtor is about to leave the S tate, or conceal
himself, he m ay be arrested and compelled to give bond to appear
before th e court for exam ination, and in th e m eantim e, n o t dispose
of his property. (See Supplem entary Proceedings.)
A s s ig n m e n ts a n d I n s o lv e n c y .
General assignments not valid
unless for benefit of all creditors, when assent of creditors is presumed.
The debtor m ust annex to th e instrum ent of assignm ent a sworn
inventory and list of creditors; and such instrum ent m ust be acknowl­
edged and all of th e papers recorded like a deed of real estate. The
assignm ent vests in th e assignee title to all property of the debtor.
Assignee m ust give bonds, prepare a verified inventory and valuation,
and notify creditors by m all to file claims within three months.
All claims not filed w ithin three m onths after notice published or
w ithin such extended tim e as th e court grants, not exceeding nine
m onths, including claims not yet due, can not.be paid until all claims
filed within said tim e are paid. An assignm ent does not discharge
the debtor from his debts and liabilities, b ut only entitles creditors
to share equally in his estate. All claims filed m ust be itemized
and sworn to.
A tta c h m e n ts . An attachm ent, auxiliary to th e m ain case, m ay be
sued out upon an y one of twelve (12) sta tu to ry grounds for a debt,
which is p ast due; or upon any one of four (4) sta tu to ry grounds
for a debt on contract, n ot y et due. A bond m ust be filed for three
tim es the am ount claimed, if the action Is founded upon contract,
otherwise, in a sum to be fixed by the court, if th e action is n ot founded
upon contract. Garnishm ents m ay be effected under th e writ of
attachm ent. Special attachm ents are perm itted, to attach specific
personal property, in a few prescribed cases.
B a n k s . The banks organized under th e laws of Iowa are respect­
ively designated as savings banks and sta te banks.
Savings banks m ust have a minimum capital of from $10,000 to
$50,000, according^ to th e population of the city or town in which
each is located. Each share m ust be of the par value of $100. The
sta tu to ry provisions m ust be consulted concerning the m anner of
organization, the issuance of and paym ent for capital stock, the
board of directors, quorum: voting by proxy, lim itation of deposits,
and th e investm ent thereof, the loaning of funds, th e cash reserve
required, and the dissolution of such banks
S tate banks m ust have a m inim um capital of from $25,000 to
550,000, according to th e population of th e city or town in which
each is located. Each share m ust be of the par value of $100. The
sta tu to ry provisions m ust be consulted for the particulars above
referred to on the subject of savings banks.
Banks and loan and tru st companies m ay obtain power to act as
executor, adm inistrator, guardian, receiver, assignee, trustee, or in
other fiduciary capacity. N ational Banks m ay exercise the same
powers when authorized by Act of Congress. Any Iowa State or
Savings Bank or T rust Com pany m ay become a m em ber of the
Federal Reserve bank system.
B ills o f E x c h a n g e . The negotiable instrum ent law recommended
by the in terstate commission on uniform ity of law has been enacted
and is now law in Iowa. (For Grace, See Days of Grace.) A provision
for th e paym ent of exchange, In addition to th e am ount of principal
and interest, does n ot render a bill of exchange non-negotiable.
B ills o f L a d in g . The uniform Bill of Lading law has been adopted
in Iowa.
C h a tte l M o rtg a g e s . N o sale or m ortgage of personal property.
Where th e vendor or m ortgagor retains actual possession, is valid
against existing creditors or subsequent purchasers w ithout notice,
unless a w ritten instrum ent conveying same, be executed acknowledged
like conveyances of real estate, and filed for record with th e recorder
of deeds of th e county where th e holder of th e property resides.
N o encum brance of personal property which m ay be exempt from
execution by th e he,ad of a family if a resident of the S tate shall be
of any validity 'unless th e sam e be by w ritten instrum ent and unless
th e husband and Wife concur in and sign the sam e joint instrum ent.
C o lla te ra l S e c u ritie s. There are special sta tu to ry provisions
concerning the pledging of . corporate stock, as security; and also
upon th e subject of sales of collaterals by action in court and judicial
sale. Otherwise the subject is governed by th e common law.
C o n d itio n a l S ales. No sale, contract, or lease wherein the
transfer of title or ownership of personal property is m ade to depend
upon an y condition, shall be valid against any creditor or purchaser
of the vendee or lessee in actual possession, obtained in pursuance
thereof, w ithout notice, unless th e same be lri writing, executed
by th e vendor or lessor, acknowledged and recorded th e same as
chattel m ortgages.
C o n v e y a n c e s. No particular form is necessary fo r conveyances
or mortgages. The nam e of th e parties, the description of the property,
th e consideration, th e date, signature, and acknowledgment, is all
th a t is necessary; as between the parties they are valid withou t
being recorded. The wife m ust join with her husband in conveyances,
and a conveyance of th e hom estead is of no validity unless husband

BANKING AND COMMERCIAL LAWS—IOWA

1583

J u d g m e n ts in th e district and superior courts m ay be obtained
at first term after suit commenced, if undefended; an equitable
action, except one for foreclosure of mortgage, or m echanic s l l e n
or for divorce, is triable a t th e second term after th e case is a t issue.
Judgm ents of the district court are liens on real estate owned by
the debtor a t th e tim e of rendition. If the lands lie i n a n y other
county, from th e tim e of filing therein an atteste d copy of th e ju d g ­
m ent. Lien also covers all lands which defendant m ay acquire
within ten years from date of judgm ent, or upon whtoh a l e v y is
made after ten or before tw enty years from th e date of th e judgm ent,
b ut this lien dates only from th e tim e of th e levy. Judgm ents of
superior courts and justice of peace courts become liens on real estate
by filing transcript to district court w ithin county where obtained,
and become liens in other counties In th e saffie m anner as if rendered
to the district court,
.
L ie n s. These are m ainly created by sta tu te and are enforceable
In eauity. In a few cases» and under peculiar circum stances, equitaDie
liens on real estate are established and enforced in equity.
L im ita tio n s . Actions, according to th eir su b je c t m atter, have
various periods of lim itation, fixed by sta tu te, extending from th ree
Corporations are required to pay a similar Incorporation
m onths to ten years after th e oause of action accrued. Actions upon
fee before doing business in the S tate, “based, however, upon the
judgm ents rendered in courts of record have a lim itation of tw enty
oroperty of th e corporation, w ithin th e S tate of Iowa. . Foreign public
years. Dower rights and m ortgages existing or created p r i o r t o
eervice corporations, other th a n steam railroads, doing business in
Ja n u ary 1. 1885, are barred, unless now properly preserved in th e
Iowa and holding companies controlling th e stock of such companies,
recorder’s office. Im perfect deeds By executora, adm inistrators,
are m ade subject to m any of th e laws of Iowa affecting similar domestic
trustees, or guardians m ade prior to Ja n u ary 1, 1885, are confirmed
corporations.
in favor of grantees in possession.
C o u rts. Term s and Jurisdiction. The district court has Jurisdic­
M a rrie d W o u je n m ay own to their own right, real and personal
tion of all actions, civil and equitable, and has criminal and probate
property, and m ay manage, sell, convey, and devise th e sam e by
Jurisdiction. Superior courts m ay be established by the vote of
will. N either husband nor wife is liable for th e debts or liabilities
the people in any city of 5,000 inhabitants. I t has jurisdiction to
of th e other incurred before or after marriage, nor are th e wages,
try all violations of city ordinances, and th e same criminal jurisdiction
earnings, or property of either, liable for the separate debts of the
as Justice of th e peace courts. I t has Jurisdiction to try and determ ine
other. Contracts m ay be m ade by a wife, liabilities incurred, and
civil and crim inal appeals and civil writs of error from justices of
enforced by or against her. as if unm arried. Both husband and
the peace, situ ated in th e township where the court is located. Has
wife are liable for the expenses of th e fam ily, and th e education
the same jurisdiction as th e district court to try all suits in law and
of th e children.
»
eauity. except g ran t divorces, alimony, and separate m aintenance,
M o ra to riu m ^ Soldiers and sailors and other persons in th e mili­
and it has no probate jurisdiction. T ranscripts from superior and
ta ry or naval service of th e government, or who m ay hereafter enter
Justice's courts m ust be filed in district court to create a lien on real
such service during the present war are exempted while in such service
estate, an d are th en enforced as judgm ents of th e district court;
and for a period of six m onths after the term ination of the war or ot
Justice's jurisdiction, $100, or, by w ritten consent of parties, $300.
said service or death, from paym ent of any bill of exchange or ot any
The suprem e court has only appellate jurisdiction and holds sessions
negotiable instrum ent, or of any other paym ent in pursuance of any
a t Des Moines, Jan u ary to May. from May to Septem ber (less vaca­
contract or from any writ of attachm ent or execution. Any such per­
tion), an d from Septem ber to December.
son who is or hereafter m ay be a p a rty to litigation m ay on request
D ay s o f G race. Every negotiable instrum ent is payable a t the
have same continued until th e term ination of such service or death.
The sta tu te of lim itations against such persons is tplled for the same
time fixed therein w ithout grace.
D e p o s itio n s m ay be tak en within th e S tate, on notice, an d within
period.
.
.- " >
M o rtg a g e s m ust be subscribed and acknowledged by th e parries
or w ithout th e S tate, on commission, issued a fter notice by the clerk
creating the lien and recorded same as deeds are foreclosedby equitable
of th e proper court. W hen to be tak en on commission, defendant
mav elect, in writing, duly served, to cross exam ine orally; thereupon
action The wife should join in th e instrum ent, except m ortgages
plaintiff m ay a ls o ‘elect in w riting to exam ine orally. Exceptions
for purchase money, and mortgages upon
must be filed w ithin three (3) days, a fter the filing of the deposition,,
property. The m ortgagor has one year in which to redeem real
estate after execution sale, except as sta te d finder th e sub-title Execu­
b u t objections m ay neverless be m ade on the trial for competency,
tions.” W hen a m ortgage is paid on. satisfaction thereof m ust be
m ateriality, an d relevancy.
m ade on margin of the record, or by satisfaction piece, acknowledged
D e s c e n t a n d D is tr ib u tio n of P ro p e rty . Subject to rights of
and recordedf If no satisfaction is entered w ithin th irty days after
dower an d other charges thereon, and burdens imposed during the
request in writing, the mortgagee forfeits $25. (See Chattel Mortgages.)
lifetime of th e decedent, and in the absence of a valid will, the estate
(See Lim itations.)
of one deceased shall descend in equal shares to his children. The
N o n -re s id e n ts . Action m ay be brought against non-residents to
heirs of an y deceased child shall inherit in sam e m anner as though
enforce liens on any property within th e sta te ; to enforce.any debt
such child had outlived his parents. If the intestate leave no issue
against a non-resident where action is aided by attachm ent °n prop­
the whole of th e estate to th e extent of $7,500 after paym ent of debts
erty found within the State. Personal judgm ent cannot in an y case
and adm inistration expense, and one half of th e estate in excess or
be rendered against defendants, n ot appearing, unless personal
said $7,500 goes to th e surviving spouse and th e other halt to the
service is had on such defendants w ithin th e S tate.
Darents. I f no, surviving spouse, th e whole thereof shall go to his
parents or th e survivor of them ; and so on through ascending an­
N o ta rie s. These officers are appointed and commissioned b y th e
cestors and their issue, if both parents be dead. Personal property
governor, upon filing a bond and paying th e fee required b y law.
not necessary to p ay debts is distributed to the, sam e persons, and m
Thev have power to adm inister oaths, take deposition«, and the
th e sam e proportions as though it were real estate.
usual power of such officers concerning presentation, dem and, protest,
and notice of .protest of negotiable commercial paper.
D o w er. Dower in Iowa Is abolished, b u t th e surviving spouse
is entitled to one-third in value of all th e legal and equitable estates
P a r t n e r s h i p s , L im ite d a n d S p ecial. Lim ited and special P art­
In real property possessed by th e deceased spouse a t any tim e during
nerships are perm itted, b u t n ot favored. The sta tu tes on this subject
th e m arriage, which have n ot been sold on execution or any other
m u st be strictly complied w ith. A certificate showing prescribed
Judicial sale, an d to which such survivor has m ade no relinquishm ent
details and particulars of the partnership m ust be signed, acknowl­
■of right. A spouse, heir or devisee feloniously taking or procuring the
edged, and filed in the office of th e clerk of th e district court of the
taking of th e life of th e other spouse, or decedent, cannot have dower
county to which the principal place of business is situated, to be
or Inherit power or tak e u nder the will of the decedent. (See Limi­
there recorded and similarly recorded in each county where such
partnership has a place of business. There m ust be an affidavit
tations.)
th a t the am ount stated to the certificate has been actually contributed
E m p lo y e rs L ia b ility . Em ployers liability and workmen s com­
by each separate partner. P ublication m ust be m ade of th e certificate
pensation is- governed b y sta tu te.
^
and affidavit for six weeks to two newspapers to each*senatorial
E x e c u tio n s m ay be stayed, according to th eir am ount, for ninety
district in which th e partnership is to tran sact business.
days or six m onths, w ith a few specified exceptions, and the issuance of
execution m ay be prevented by filing an appeal b o n d . Otherwise
P o w ers of A tto r n e y . A power of atto rn ey to convey, or in any
execution m ay issue im m ediately after rendition of judgm ent. The
m anner affect real estate, m ust be acknowledged and recorded. A
Judgm ent Is a lien on realty w ithin th e county where rendered, or by
revocation of such power m ust be acknowledged and recorded in the
transcript, it m ay be m ade a lien in any other county. Executions
same office whereto the original power of attorney is recorded.
become liens on personal p roperty only fro m th e tim e io fth e levy and
R e ceiv ers. In distributing property in the hands of » re c e iv e r
seizure. Real estate is sold on execution subject to redem ption within
there shall be paid in the following order; Sfi Taxes or debts due
one year, except in appealed oases, or where th e Interest is a leasehold
the United States; 2 . Taxes or debts due th e S tate. 3. D ebtsow ing
of two years or less. Creditors m ay redeem from th e sale after six
to employes for labor, not exceeding $100.
m onths a n d before nine m onths from date of sale. Personal property
R e co rd s. All instrum ents conveying or creating liens upon the
is sold w ithout redem ption.
real or personal property, all conditional sales and articles of adoption
E x e m p tio n s . The head of a fam ily is entitled to a h om esteadof
of a m inor child, m ust, after having been signed an d acknowledged,
fo rty acres o r less of farm land, or half an aore or less to city or town.
be recorded to the office of the recorder of deeds to th e proper county
Pension money, its proceeds, wages of the head of a family for 90
or oountles where th e property conveyed is situated, or th e m inor
days past, and-num erous item s of personal property are ex em p t by
child is Unless so recorded, such Instrum ents are invalid as to a
sta tu te. T here are statu to ry provrsions concerning the creation of
bona fide purchaser or encum brancer or as articles of adoption.
liens on exem pt real or personal property, and the assignment ot
R e d e m p tio n . Redem ption from a sheriff’s sale of real estate,
exem pt wages.
w hether sold under a general or special execution, m ay be m ade
F ra u d . In actions for fraud, heretofore solely cognizable In a court
by
a creditor who has a lien on the property sold, a t tim e after six
of chancery, th e cause of action shall n ot be deemed $o
m onths from date of sale by paying to the clerk of th e court the
u n til th e fraud complained of shall have been discovered by th e p arty
am ount provided by sta tu te, being, generally, th e am ount of the
aggrieved by th e exeroise of due diligence. In actions bro.u Sht by a
purchaser's bid, w ith Interest a t th e same ra te th a t th e Judgm ent
lodgm ent creditor to set aside a fraudulent conveyance.of jm>perty
bears. W ithin the tim e nam ed creditors m ay redeem from each
from one spouse to th e o ther and to subject said property to execution,
other" A fter nine m onths, and within one year from th e d ate of sale
eith er husband o r wife m ay be compelled to testify against the other.
the owner of the real estate sold has th e exclusive right to redeem from
Gross fraud is punishable by fine or im prisonm ent.
such sale, and, to so doing, th e debtor m ust pay off th e claims of
G a r n is h m e n ts . (See A ttachm ents.)
Judgment creditors, who have m ade redem ptions a s hereinabove
H u s b a n d a n d W ife., (See Married Women.)
stated, to addition to th e am ount originally bid.
H o lid a y s. The first day of the week, January 1, February 12,
R e p le v in .
In actions for th e recovery of personal property, the
F ebruary 22, M ay 30, July 4, the first M onday in September, Decem­
petition m ust be verified; and if plaintiff desires im m ediate delivery
b er 25, th e day of general election and any
uppomted or recom­
of
the
property,
he shall execute a bond for double th e value of the
mended bv th e governor of this State or the President of the u n itea
property sought to be recovered. The defendant m ay sta y all pro­
States as / d a y of fasting or thanksgiving are b ®llduys. for all pmposes
ceedings
and
retain
th e property by executing a bond to th e plaintiff
relating to th e presentation for paym ent or acceptance, and for th e pro
w ith sureties to be approved by the clerk.
testing and giving notice of th e dishonor of bills of exchange, drafts,
S
ales
of
G
oods
t
n B u lk . Sales, including exchange an d assign­
bank checks, orders and promissory notes.
m ents. of th e whole or m ajor p a rt of a stock of goods, or fixtures, or
I n t e r e s t . By w ritten contract, m axim um legal rate, 8 per cent.
stock of goods and fixtures, in bulk, is presum ptively fraudulent,
Judgm ents draw 6 p er cent, or such rate as is fixed
unless seven days’ notice in writing is previously sent by registered
on which th e judgm ent or decree is rendered, n ot exceeding 8 per
m ail to each creditor of the seller., describing m general term s, the
n er annum .
Open accounts draw 6 per cent after six
property to be sold, assigned or delivered, and the parties thereto.
m ontlis from d ate of la st item ; money loaned,
B oth parties m ust, seven days prior to the sale or transfer m ake a
du e on settlem ent of accounts, bear interest a t 6 per cent per aimum.
detailed inventory; showing quantity and cost of price to seller ana
C ontract for more th a n 8 per cent forfeits all Interest and costs.

And wife concur in and sign th e same joint instrum ent. A corporation
executes conveyances under its corporate seal, except where the
¿ornoration has n o t adopted a seal. Such conveyances m ust be signed
in th e nam e of th e corporation by th e officers authorized so to do,
by th e Articles of Incorporation, or By-Laws, or by resolution duly
■entered of record in th e m inutes of the corporation, and duly acknowl­
edged by such officers, as th e act of th e corporation.
C o rp o ra tio n s. * P rivate corporations, sole or aggregate, m ay be
formed for any lawful purpose. B ut there are special statu to ry
provisions which m ust be complied w ith for the organization and
governm ent of insurance, banking, loan and trust, building and loan,
and railway corporations. In all cases, th e articles of incorporation
must be acknowledged and recorded, in the m anner provided by
law. and approved by th e secretary of state. W ith a few exceptions,
an incorporation fee of $25. plus $10 for each thousand dollar« of
«anital in excess of $10,000 m ust be paid, upon the organization
or renewal of a private corporation. The general term of th e life
of a private corporation is tw enty years, renewable for a like term .
Railroads,, savings banks, and a few others may., last fifty years,


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

th e latter m ust furnish under oath a list of his creditors and the am ount
due each.
1 '
■
_ S e c u r ity fo r C o sts. N on-resident plaintiffs m ay, on m otion of
defendant, be required to file a bond w ith sureties to be approved for
security of costs either in justice court or district court.
- S t a tu t e o f F r a u d s . N o evidence except in w riting and signed
by th e p a rty to be charged or by his authorized agent, is com petent
relative to th e following c o n tracts: 1 . In relation to sale of personal
property, when no p a rt of th e property is delivered and no p a rt of
th e price is paid. 2. In consideration of m arriage. 3. Wherein
one promises to answer for th e debt, default or m iscarriage of another
including promises by executors to pay th e debt of decedent from their
own estate. 4. F or th e creation or transfer of any interest in lands,
except leases for a term n ot exceeding one year, 5. Those n ot to
be perform ed within one year from th e m aking thereof.
, S to ck s a n d B o n d s. T he sale of stocks and bonds is governed by
w hat is term ed a “ Blue Sky Law.’’ ,
S u p p le m e n ta r y P ro c e e d in g s. When an execution has been
.returned unsatisfied, plaintiff m ay have an order for the appearance
an d exam ination of th e judgm ent debtor; or such order m ay be
obtained after execution has issued upon proof by plaintiff’s affidavit
or other proof th a t debtor has property which he unjustly refuses to
apply to th e satisfaction of th e judgm ent. I f any property be found
b y such exam ination it m ay be levied upon; if in th e hands of others
th e court m ay require its delivery to satisfy th e judgm ent, and
appoint a receiver of debtors property, forbid th e sale thereof and
order E quitable interests in realty to be sold.
T a x e s. /Real estate is assessed every odd year; personal property
us assessed every year. All property is assessed a t its actu al value,
an d taxed a t twenty-five (25) per cent of th e assessed value. All
road taxes an d one-half, of th e other taxes levied are payable w ithout
in terest_ or penalty before April 1st; th e balance is payable
before October 1st. Delinquent taxes bear interest a t the rate of
,1 per cent per m onth. Taxes upon realty are liens thereon; taxes
upon personalty are liens upon tne owner’s realty, except th e home-,
stead, an d m ay be continued as such liens, if the s ta tu te Is complied
w ith, from y ear to year. Taxes on personalty are liens on th e personal
property of non-residents, stocks of goods sold in bulk, and buildings
or additions m ade after the assessment for tax atio n in th e odd years
Personal property m ay be levied on an d sold for taxes by distress
an d sale. Real estate is sold for unpaid taxes, a fter notice by publica­
tion, on th e first Monday in December of each year, subject to redem p­
tion In three years from th e date of sale.
T r u s t C o m p a n ie s . Domestic tru st companies are organized under
an d governed by the general corporation laws of th e S tate. Foreign
tru st companies doing business In this S tate are governed and con­
trolled by th e general statu tes concerning and relating to foreign
corporations doing business in Iowa; (See Corporations.)
T r u s t D eed s. They m ust be executed and foreclosed, and consid­
ered as mortgages. T h at is, th e power of sale on notice is abolished,
an d th ey m ust be foreclosed by equitable action.
W a re h o u s e R e c e ip ts. Any person, firm, o r corporation desiring
to Issue elevator or warehouse certificates (or receipts) m ust file a
w ritten declaration w ith th e recorder of deeds in the county where
his or its elevator or warehouse is situated, setting forth the particu­
lars requiredj by sta tu te, which declaration m ust be recorded by the
recorder of deeds.
T hereafter he or it m ay issue certificates for
commodities actually in such elevator or warehouse, b u t the certifi­
cates m ust conform to the sta tu to ry provisions. A register of
certificates issued m ust be kept by th e parties Isuing them . A
violation of these provisions, issuing double certificates for th e same
property, or selling or encumbering property included in any ware­
house receipt, is m ade a criminal offense. There is also a criminal
sta tu te against issuing false warehouse receipts or certificates.
* W ills. A ny person of full age and sound m ind m ay dispose of
his property by will, subject to the rights of hom estead and exemp­
tio n created b y law and the distributive share in his estate given
b y law to th e surviving spouse, except sufficient to pay his debts
and expenses of adm inistration. Wills, to be valid, m ust be w ritten,
witnessed b y two com petent witnesses, signed by th e testato r, 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 com petent witnesses besides them . Wills executed outside of
Iowa,$ln accordance w ith the laws of th e S tate where executed or
of th e te sta to r’s domicile, if in w riting and subscribed by the testato r
ure valid in Iowa. If probated In any other sta te or country they
shall be adm itted to probate in this S tate on th e production of a copy
of such will, and of the original record of probate thereof, authenticated
by th e attesta tio n of th e clerk of the court in which such proba­
tion was m ade or of the probate judge, under seal, if th ey have
one. All wills m ust-be probated before th ey can be effectual.

S Y N O P S IS O F

T H E L A W S OF K ANSAS
i

RELATING TO

B A N K I N G A N D C O M M E R C IA L U S A G E S
Revised by M cC l in t o c k , Q u a n t and K r a u t h o f f .
A ttorneys a t Law, Topeka.
(See Card In A ttorneys’ List.)
A c k n o w le d g m e n ts , (See Deeds.)
A ctio n s. Civil actions are conducted as required by a code of
procedure. Security for costs m ust be given or resident plaintiffs
m ay deposit $15 in lisu of bond fbr costs. Non-resident plaintiffs
m ay be required to give bond for costs.
A d m in is tr a tio n o f E s ta te s . P robate courts in each county have
jurisdiction of' estates. Dem ands against th e estate are divided into
th e following classes: 1. Funeral expenses. 2. Expenses of the
last sickness; wages of servants; dem ands for medicines and medical
atten d an ce during th e last sickness and expense of adm inistration.
8. D ebts due the- S tate. 4. Judgm ents rendered against the
deceased In his lifetim e; b u t if such judgm ents are liens upon real
estate an d th e estate be insolvent, such judgm ents shall be paid
w ithout reference to classification, except the first two which have
fecedence. 5. All dem ands w ithout regard to quality which shall
e legally exhibited against th e estate in one year after granting
letters of adm inistration. 6. All dem ands thus exhibited after the
end of one y ear and within two years. Dem ands n ot exhibited within
two years are barred, except as to Infants, persons of unsound mind

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or persons im prisoned Or absent from the United States, who sh«n
have one year after the rem oval of their disabilities. Foreign px
ecutors, and adm inistrators w ith th e will annexed, m ay sell
estate in this S tate in accordance with the power contained In th*
will, unless adm inistration upon the estate has been granted in this
S tate; provided th a t a t the tim e of such conveyance a coov of aupi>
will has been recorded in the office of the probate court In the count?
in which th a land is situated.
’
11
A ffid a v its . .A ffidavits m ay be m ade In or o ut of the S tate by th«
same authority and w ith like authentication, as depositions.
A lien s. Law prohibiting aliens from inheriting or holding real
estate, repealed 1901. (See Foreign Corporations.)
* eai
A r b itra tio n s . Persons having controversies m ay subm it them to
the arb itratio n of an y person or persons m utually agreed unon and
m ay m ake such submission a rule of an y court of record in the S ta te
The parties m ay enter into arbitration bonds conditioned for the
faithful perform ance of th e aw ard.
A defendant m ay be arrested in a civil action upon fliing
an affidavit w ith the clerk of th e court th a t he has removed or begun
to remove his property out of th e jurisdiction of th e court with
intent to defraud his creditors; or has begun to convert his property
Into cash, for th e purpose of placing it beyond the reach of his creditorsor has property which he fraudulently conceals; or fraudulently coni
tr a d e d the debt.
A s s ig n m e n ts a n d In s o lv e n c y . Assignm ents m ust be for the
benefit of all creditors and only discharge the debtor to th e amount
of paym ents made.
A tt a c h m e n t . A t or after the commencement of an action an
attach m en t m ay be had by plaintiff. The affidavit of the plaintiff
nls agent, or attorney m ust be filed, stating the nature of th e claim
th a t it is just, the am ount affiant believes ought to be recovered*
and th e existence of some one or more of the following grounds- l*
T h at defendant is a foreign corporation or a non-resident of the State
(but In this case for no other claim th a n a dem and arising upon con­
tract, Judgm ent, or decree, unless the cause of action arose wholly
within the lim its of the S ta te ). 2. T h at th e defendant absconded
with th e intention to defraud his creditors. 3. T hat the defendant
has left th e county of his residence to avoid a service of summons.
4. T h at he so concealed himself th a t summons can n ot be, served
upon him. 5. T h at he is ab o u t to remove his property or a part
thereof out of th e jurisdiction of th e court with th e intent to defraud
his creditors. 6. T hat he is about to convert his property or a
part thereof Into money for th e purpose of placing It beyond the
reach of his creditors. 7. He has property or rights in action which
he conceals. 8. H as assigned, removed, or disposed of, or is about
to dispose of his property, or a p a rt thereof, w ith the intent to defraud,
hinder, or delay his creditors. 9. Or fraudulently contracted or
Incurred th e debt on which th e suit is brought. 10. Or th a t the
suit is brought for damages from th e commission of some felony or
misdemeanor. 11. Or th a t th e debtor has failed to pay for any
article or thing delivered for which by contract he was bound to pay
upon delivery.
B a n k s a n d B a n k in g . There Is no constitutional provision relat­
ing to banks, except banks of issue. O ther banks are organized
under a general act. The charter, in addition to the requirements
of the law relating to corporations, shall contain th e nam es and
places of residence of th e stockholders and th e am ount of stock sub­
scribed by each, and m ay contain such other provisions, not incon­
sistent w ith law, as the stockholders m ay deem proper, and shall
be subscribed by a t least five of the stockholders of the proposed
bank who are residents of the S tate of Kansas. Board of directors
shall be n ot less th an five, nor mdpe th an thirteen, a m ajority of whom
shall be residents of the county or adjoining counties to th a t in
which the bank Is located. The word “ S tate” shall be included in th e '
title. The full am ount of the capital stock m ust be subscribed before
the charter is filed. The bank shall tran sact no business, except the
election of officers, the taking and approving of their official bonds,
and the receipts of paym ents on account of .subscriptions to its capital
stock, until it has been authorized by ihe bank commissioner to
commence business. The capital stock m ust be paid, in full, in cash
and shall not be less th a n $10,000. No bank shall employ its money
directly or indirectly in trad e or commerce by buying and selling
goods, chattels, wares, and merchandise, and shall not Invest In the
stock of any bank or corporation, nor m ake any loans on th e security
of the shares of its own capital, nor be the purchaser or holder of
any suoh shares, except to prevent loss upon a debt previously con­
tracted in good faith. All such property coming into th e possession
of the bank in the collection of debts shall not be considered assets
after the expiration of six m onths. Banks m ust have on hand in
available funds the following sums: In cities having less th an 5,000
population, 20 per cent of th eir deposits; In cities having over 5,000
population, 25 per cent, one-half of which m ay consist of balances
due from good solvent banks located a t commercial centers and at
such other points as the bank commissioner m ay approve. The
other half shall consist of actual cash. Officers are personally liable
for paying overdrafts. N ot more th a n 15 per cent of th e capital
stock and surplus can be loaned to any one person, com pany or cor­
poration. No bank shall accept deposits continuously for six months
in excess, of ten tim es Its paid-up capital and surplus. Penalties are
rovided for false statem ents and for receiving deposits when the
ank is in a failing condition. P rivate banks are subject to the pro­
visions of the law. The bank commissioner, or deputy, m ust make
exam ination of each bank a t .least once a year. Four reports per
annum are required, and th e commissioner m ay call for others.
Banks m ay purchase, hold, and convey real estate under certain con­
ditions to the ex ten t of 50 per cent of their paid-up capital. Share­
holders are additionally liable for a sum equal to the p ar value of
stock owned and no more.
Deposit G uaranty Fund. Any bank having an unim paired sur­
plus equal to 10 per cent of Its capital, m ay participate in th e guar­
an ty fund act. Such bank m ust deposit w ith th e sta te treasurer
money or bonds of th e U nited States, S tate of Kansas, or of any
township, school district, board of education or city within the
State, to the am ount of $500 for each $100,000 of its average deposits
eligible to guaranty (less Its capital and surplus). I t shall also pay
in cash an am ount equal to one-tw entieth of one per cent of its aver­
age deposits eligible to guaranty (less its capital and surplus).
In Ja n u ary of each year th e commissioner shall m ake assessments
of one-tw entieth of one per cent of th e average guaranteed deposits
of each bank until th e cash fund accum ulated am ounts to $500,000.
The commissioner m ay m ake additional assessm ents of th e same size
not more th a n 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 th e guaran ty fund. I
Deposits otherwise securea do n o t participate, nor a bank’s obligation
as Indorser Upon bills re-discounted, nor bills payable, no r money
borrowed from its correspondents or others.
Banks are prohibited from advertising th a t deposits are guaran­
teed by th e S tate b u t are perm itted to advertise th a t deposits are
guaranteed by the Bank Depositors > G uaranty Fund.
B ills of E x c h a n g e . (See Notes and Bills of Exchange.)
B ills of L a d in g . These are governed by the common law.

E

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1585

taken by interrogatories and cross-interrogatortes. im d e r agreem ent
B u lk S ale. “ Thé sale or disposal of any p a rt or the whole of a
or otherwise, each interrogatory and cross-interrogatory mud; be
stock of m erchandise or th e fixtures pertaining thereto, otherwise
p ut to each witness and answered so far as he can answer i t . and th e
than in th e ordinary course of his trade or business, shall
answer w ritten down. If the depositions are tak en before the m ayor,
against th e creditors of th e seller, unless th e purchaser receives from
notary public, or commissioner appointed as aforesaid, they m ust
the seller a list of th e names and addresses of th e creditors of the
be certified under his offloial seal. If before an y of th e o ther offioenj
seller certified by th e seller under oath to be a complete and accurate
above named, a certificate m ust be annexed, under th e seal of the
fist of his creditors and unless the purchaser shall, a t least seven days
court of th e county, or th e great seal of th e S tate, th a t th e omcer
before taking possession of th e property, or before, paying therefor,
by whom the depositions were taken was. a t th e tim e of taM ng the
notify in person or by registered mail, every creditor whose name
same, such officer as he? represents himself to be in his certificate.
and address is stated in said list, or of whom he has knowledge, of
This should be attached to the m agistrate s certificate.
the proposed sale.”
D e s c e n t a n d D is tr ib u tio n . The hom estead is th e atwolute
C h a tte l M o rtg ag es. A m ortgage of personal property, where the
property of the widow and children—one-half in value to ííl®
nronerty is n ot im m ediately delivered to the m ortgagee who retains
a n a t h e other half to th e children, when bp th s u r v l^ . The hom e­
actual and continuous possession thereof, is void as against cr®ditors
stead can n o t be divided or sold by’an action for p artitio n untU au
of the mortgagor and as against subsequent purchasers and mortgagees
the children a tta in m ajority. One-half of
in good faith, unless th e mortgage, or a copy thereof, is filed in the office
husband during coverture, and not conveyed by husband and w ll^
of the register of deeds in th e county where the property is situated,
nor sold a t Judicial sale, and n ot necessary to pay debts goes to th e
or if th e m ortgagor is a resident of the state, then of the county of
wife in fee simple: except of land sold b y husband whose
which he is a t the tim e a resident. A mortgage so filed is invalid
resided in tlw S tate. Rem aining estate goes to th e surviving
after tw o years unless w ithin th irty days next preceding such two years
children, and living issue of prior deceasedchU dren, children taking
and each two years thereafter th e mortgagee, his agent or attorney,
per stirpes, in equal shares, or, if none, to th e widow. F or
makes an affidavit exhibiting th e interest of th e m ortgagee m the
wife or child th e whole estate goes to th e parents. The rul©®aPP“ .
Drooerty, and files th e same in the sam e m anner as th e m ortgage.
cable to widow of deceased husband apply to husband of 4®®^Pa®d
In case of default th e mortgagee m ay sell upon ten fa y s notice,
wife. Illegitim ate children Inherit frqfln th e m other, an d also from
A mortgage of exem pt personal property is invalid unless executed
th e father, if bis recognition has been general and notorious,
jointly by husband and wife where th a t relation exists.
writing. W hen a child would thherit from eitoer parent, such parent
C o lla te ra ls.
Governed by the common law on Bailm ents and
will inherit from th e child. Personal Property descends ln th e s a m e
Pledge.
-O11 ■
w ay as real estate. P roperty descending b y law or will is subject
C o n d itio n a l S ales. Conditional contracts, by which the owner­
to an Inheritance tax, varying in percentage according to relationship
ship rem ains in th e p arty proposing to sell until the jpurohase ]price
and am ount. (See Exem ptions.)
to paid, are treated as chattel m ortgages and m ust be filed In the
D o w er. Dower is abolished by law. (See Descent an d D istri­
Sfice of th e register of deeds in the same m anner as, such chattel
bution.)
mortgages b u t rem ain in foroe w ithout th e renewal affidavit required
,
E v id e n c e . (See Testimony.)
3 __
In chattel m ortgages.
E x e c u tio n s m ay be ordered as soon as Judgm ent is obtained.
C o n tr a c ts . All contracts which, by the common law. are Joint
There Is no stay of execution in th e district court. In justice s
only, shall be construed to be Joint and several. The two of private
courts, by filing bond, stays of execution are ^rented as follows.
Dfayfa in w ritten contracts (except seals of corporation) is abolished.
On an y judgm ent for $20 and under, th irty days; over $20 and under
C o n v e y a n c e s. (See Deeds.)
$50, sixty days; over $50 and n o t exceeding $100, ninety daF8’ ®y®?
$100, one hundred and tw énty days. Real estate sold on execution
C o rp o ra tio n s. Corporations are formed under a general sta tu te.
or order of sale, giving the’debtor eighteen m onths in which to redeem.
Prospective corporations m ust apply to th e charter board for a c a r t e r .
A $25 application fee m ust accom pany an application. C harter ree
The debtor Is entitled to possession of th e property during th e period
is one-tenth of one per cent of its authorized capital stock upon the
provided for redemption.
first $100,000; one-tw entieth of one.per cent on all in excess of $100*000,
E x e m p tio n s . Hom estead of 160 acres of fa™1!?*;land. or.of one
Forms for applications and charters furnished by th e Secretary ol
acre w ithin an incorporated town or city, w ith buildings thereon,
State. E very corporation m ust commence active operations within
unlim ited in value. All household goods and wearing apparel, two
one year after filing its charter w ith th e secretary of sta te ; failure to
cows, ten hogs, one yoke of oxen, and one horse or
do so works its dissolution. D uration of charter is fifty, years No
of one yoke of oxen and one horse or mule, a span of horses or mules,
corporation (except railroad, banking, and building and loan) .c a n
and tw enty sheep and their wool; necessary food for the support or
commence business u n til it file w ith th e secretary of sta te an affidavit
such stock for one year; one wagon, two plows, drag, and o th er
made by its president and secretary setting forth th a t not less than
farm ing utensils, n o t exceeding $300} grain,
20 per cent of its capital stock has been paid in actual cash, or property
ceries, etc., for the family for one year; the tools and implements_of
equivalent thereto. The nam e adopted m ust indicate the nature of
any mechanic, miner, or other person, kep t for th e purpose or carry­
the business. The corporate nam e m ust begin with the word tne^
ing on his business, and in addition thereto stoefc-in-'tra.a.e noh exceed-,
and end w ith th e word “ corporation,” "oom pany,
association,
lug $400 in value; library, implem ents, and office furniture of any
or "society.” b u t this does not apply to banks, benevolent or relig­
professional man. Also personal earnings of th e debtor earned during
ious societies. T here m ust be a t least five directors, three of whom
three m onths preceding th e garnishm ent or attachm ent, and three
m ust be residents of th e S tate. The annual statem ent shall be m ade
m onths’ pension money, wbere such earnings or pension m oney is
by each corporation for profit on or before M arch 31st of each year,
necessary for th e support of th e debtor s fandly, b u t 10 per cent of
showing a complete detailed statem ent of th e condition of such corsuch,
earnings m ay be required to be paid in and applied on th e juag
poratlon, on th e 31st day of December nex t proceeding. Failure to
ment.
file th is report within nin ety days from tim e fixed works a forfeiture
F o re ig n C o rp o ra tio n s. A foreign corporation doing business In
of th e charter, and a penalty of $5 for each day the report i® delayed
this S tate m ust file a certified copy of its charter w ith the secretary
The capital stock can be increased to an am ount not exceeding three
of state and pay to the state treasurer the same fees upon th e am o u n t
times th e original am ount fixed in the charter and to any further
of capital invested or used in this state as a dom estic corporation,
am ount of bona fide fully paid up capital. Capital stocslx m ay aiso
when it receives a certificate authorizing it to do business and is then
be decreased. Preferred stock can be issued if all the holders of
subject to substantially the same provisions, judicial-control, restric­
common stock consent. Dividends can not be d e c k e d from any
tions- and penalties as a domestic corporation. Annual statem ents
source other th an th a t which results from profits. The corporation
m ust be filed on or before M arch 31st, giving condition on the>31st
can borrow money not to exceed th e am ount of its capital stock.
of December preceding. If a foreign corporation fails to file w ith the
C o sts. (See Actions.) Corporations (except banks. Insurance,
secretary of state the statem ent required by la w w ith m ninety <
d ays
building and loan companies and those not organized for profit) m ust
after the tim e provided for, its right to do business m th e S tate is heretpay an annual franchise tax on paid-up capital as follows; Not_over
bv
forfeited.
A
penalty
is
imposed
of
$5
for
each
day
this
report
is
*10,000, $10; over $10,000 and n ot over $25,000, $25;
non2«inn°
delayed. Foreign corporations m ust pay an annual franchise tax
and not over $50,000, $50; over $50,000 an d not over $100,000, $100,
on
th
a
t
portion
of
their
capital
represented
by
its
property
and,busi­
over $100,000 and n o t over $250,000, $125; over $ 2 % in°nnnn ®civv
ness in Kansas on the same basis as domestic corporations., ,
over $500,000, $250; over $500,000 and n ot over *1,000,000, $500,
over $1,000,000 and n o t over $2 ,000 ,000 , $ 1 ,0 0 0 ; over $2,000,000
F ra u d . (See Attachm ents, A rrest, and Assignments.)
and n o t over $3,000,000/ $1,500; over $3,000,000 and not over
G a r n is h m e n t. A t or after the tim e of beginning an action to
$5,000,000, $2,000; over $5,000,000, $2,500.
recover damages founded Upon contract, Judgm ent or decree, or after
the Issuance of an execution and before it is returned, if the plaintiff
C o u rts. Terms an a Jurisdiction. D istrict courts, holding two to
cause to be filed w ith the clerk an affidavit stating the am ount of his
three term s a year in every county, have general original Jurisdiction
claim over and above all offsets, th a t he believes th a t some person,
in law and equity. Regular term s of th e probate court are held in
naming him, indebted to, or has property in his possession or under
each county on th e first M onday in each m onth and special or adjourned
term s m ay be held as business m ay require. Justice s jurisdiction m
his control belonging to the defendant, and th a t such defendant has
no property liable to execution sufficient to satisfy his debt, and
civil actions for th e recovery of money, $300; to recover speciflc
th a t the indebtedness or property so held is not by law exem pt
personal property, $300. .T h e suprem e court is the court of last resort.
from seizure or sale upon execution, th e clerk shall issue a garnish­
C re d ito rs ’ B ills. Creditors m ay bring an action in the nature of
m ent summons.
a creditors’ bill to m arshal assets or set aside fraudulent conveyances
G u a r a n ty C o m p a n ie s. (See T rust Companies.)
as in other states.
H o lid a y s. T h e following are legal holidays: January 1st, known
D ay s o f G race. Abolished.
as
New Years Day. February 12th, Lincoln’s B irthday. F ebruary
D eed s. No particu lar form s of conveyances are proscribed. As
22nd, W ashington’s B irthday. M ay 30th, Memorial E[ay. _ Ju ly 4th,
a rule th e form used in other S tates is sufficient. As between
Independence
B ay. F irst M onday in September, Labor B ay. Ucthe parties conveyances are valid w ithout being recorded.
1 ne
tober 12th, Columbus D ay (but does not affect commercial paper).
wife should join w ith her husband In the conveyance, and any
December
25th,
Christm as D ay. If any of these days fall on Sun­
conveyance or m ortgage of the hom estead without
day the next secular or business day is a legal holiday.
same is absolutely void. If the wife has never resided in the State
H u s b a n d a n d W ife. (See Married Women.)
her signature Is n o t necessary. G rantors need not a ttach any j
or scroll to th eir signatures, and no witnesses are necessary unless
I n ju n c tio n s . Injunctions m ay be granted by a district court of
grantors are unable to w rite. Corporations convey bseal®d
by the Judge thereof a t the beginning of an action or afterw ards, In
with th e corporate seal and signed by president, vice-president, pre­
his discretion. A bond m ust be given to p ro tect th e defendant
siding member, or trustee. The acknowledgment m ust be before a
against any loss in cáse the injunction is wrongfully obtained. In
Judge or clerk of th e d istrict court having a seal, a justice of the
the absence of the Judge from the county th e probate Judge m ay
peace, n o tary public, county clerk, register of deeds. m ayor or clertc
grant tem porary injunctions.
o f a n incorporated city. Every n otary public shall add to his official
In s o lv e n c y . (See Assignments.)
signature th e d ate of th e expiration of his commission as notary
I n t e r e s t . Legal rate, 6 per cent, b u t 10 per cent m ay be agreed
publio. In cases where the acknowledgm ent is “ ad,® £ u t 0 *
upon Excess o f 10 per cent is forfeited, and in addition thereto there
S tate it m ust be m ade before a court of record, a c le r k ,o r other
«Yifl.il be deducted from th e am ount due for principal, w ith lawful
officer having th e seal thereof, a commissioner of deeds for Kansas,
interest, an am ount equal to the Interest contracted for in excess ol
justice of th e peace o r n o tary public, or before any consul of the
10 per cent. The legal interest originally contracted fo r continues
U nited S tates resident in any foreign country or port. Deeds and
until th e debt is paid, and no additional interest can be charged by
mortgages m ust be recorded in the office of the register of deeds of
way of penalty for default. A purchaser of a negotiable note to r
the county in which th e land is situated, or they will be void as to
value before m aturity, w ithout notice, takes th e note free of th e
subsequent grantees in good faith w ithout notice.
usurious tain t.
D eed s o f T r u s t in th e n atu re of m ortgages are n ot used so far as
J u d g m e n ts .' Judgm ents of courts of record are liens on th e real
sale by th e tru stee is concerned. (See Trusts, etc.)
estate of th e debtor w ithin th e county from th e first day of th e term
D e p o s itio n s . Depositions are taken upon notice to th e opposite
a t which th e judgm ent was rendered; b u t judgm ents by confession
party? Courts are also authorized to appoint commissioners to take
and Judgm ents rendered a t th e same term during which th e action
depositions. The depositions m ay be taken before any P ® ^ \ 4 b tb ? £
was commenced are liens only from the day on which th e judgm ent
ized tn tak e acknowledgm ents. Each.-witness m ust sign his own
was rendered. Judgm ents lose th eir priority over subsequent Judg­
deposition. The ^ t i c e m ust be attached to the depositions and
m ents unless execution is issued and levied w ithin one y e a r after
Inclosed w ith them . The depositions should be commenced on the
Judgm ent. A certified copy of th e judgm ent m ay be filed to the
day nam ed, and some portion of a deposition tak en on each succesoffice of the clerk of th e district court of an y other county and th e
rtve day, Sundays and national holidays n o t being regarded. If


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1586

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

Judgm ent will th en be a lien on real'estate in th a t county, b u t execu­
tion can only issue from th e court in which th e judgm ent is rendered.
J u r is d ic tio n . (See Courts.)
L ic en se. Agents of Insurance companies are required to take out
licenses from th e superintendent of insurance. Cities are authorized
to enact license ordinances and certain classes of business are required
to ta k e o u t a license.
L ie n s. - Mechanics, m aterial-m en, and laborerslfare entitled to
obtain liens upon real estate for labor perform ed or m aterial furnished
in th e erection or repair of an y building. S tatem ents as to the
am o u n t.o f th e claim, for w hat it was. rendered and by whom m ust
be filed in th e office of th e clerk of the court. Livery-stable keepers,
forwarding m erchants and common carriers have liens. (See Judg­
m ents.) .
.
L im ita tio n s o f S u its . A n action for th e recovery of real property,
Mid on execution or by executors, adm inistrators, or guardians,
brought byv th e execution debtor, or th e heirs, ward, or guardians,
w ithin five years after th e deed is recorded. O ther actions for
reoovery of real property, within fifteen years. On official bonds
and contracts in writing, five years. Contracts n ot in writing, three
years. Trespass, detinue, replevin. Injuries n ot arising on contract,
an d relief on th e ground of fraud, tw o years. A ction for libel, slander,
malicious transaction, or false im prisonm ent upon a suit for penalty
or forfeiture, one year. A ction for any other relief n ot before
provided for, .five years. Any case founded on contract, p a rt pay­
m ent. o r a w ritten acknowledgm ent or promise, renews th e contract.
The s ta tu te runs from the date of such renewal.
M a rrie d W o m e n . The real and personal property owned by a
woman a t th e tim e of her m arriage, and any property which comes
to her b y descent, devise, or bequest, or gift of any person except her
husband, rem ains her sole and separate property notw ithstanding her
m arriage, an d is n ot subject to the disposal of her husband or liable
to r his debts. Married women m ay sell and convey th eir real and
personal property and enter into an y contract w ith regard to the
same in th e sam e m anner and to th e sam e ex ten t as a m arried m an
m ay in relation to his property. She m ay sue and be sued in th e
same m aim er as if she were single. She m ay carry on any trad e or
business, perform labor or servioes for her separate acoount, and her
earnings o r proceeds from labor, trade, or business rem ain her separate
property, and m ay be used and invested by her in her own nam e.
M in e s a n d M in in g . The law provides for th e appointm ent of a
m ine inspector w ith a u th o rity to require m ine owners to provide
certain facilities for th e health and safety of persons employed and
oonipel proper ventilation, regulate excavations, air courses, etc.
M o rtg a g e s . A m ortgage of real estate, to be valid as against
subsequent bona-fide purchasers, m ust be duly acknowledged and
recorded in th e office of the register of deeds of th e county where the
land is situated. Mortgages m ay be discharged on m argin of record
b y m ortgagee or atto rn ey or assignee in presence of register, or by
satisfaction entered on th e instrum ent when copied on th e m argin
b y th e register; or b y a n Independent release duly acknowledged
an d recorded. Wife m ust Join in all m ortgages except those for
purchase money. Mortgages are foreclosed by suit only. By an
a ct of th e Legislature which took effect May 18, 1893, real estate
sold under foreclosure of m ortgage is subject to eighteen m onths
redem ption. If th e m ortgage foreclosed is for th e purchase money
six m onths only is allowed for redem ption. This act does not apply
to m ortgages executed prior to th e date th e a c t took effect. When
a m ortgage is assigned the assignm ent should be acknowledged and
recorded. If th e assignm ent was executed prior to March 15, 1899,
it can be recorded w hether acknowledged or not, and under the laws
m u st be recorded w ithin four m onths from th a t d a te or paym ent to the
recent owner of th e m ortgage will be a com plete defense to an aotion
thereon. (For Form s, see Deeds: see Executions.)
(F o r Mortgages on Chattels, see C hattel M ortgages: see Execu­
tions.)
N o ta rie s. Notaries are appointed by th e Governor and serve for
four years. T hey give bond in th e sum of $1,000 and are required
to affix th e d ate of the expiration of th eir commission to all certifi­
cates.
N o te s a n d B ills o f E x c h a n g e , Negotiable In stru m en t A ct took
effect Ju n e 8, 1905.
P a r tn e r s h ip s . Lim ited or special partnerships m ay be formed
for an y legal purpose except banking o r insurance. Such partnerships
m ay consist of one or more persons who are general partners, and
one or more who contribute a specific am ount of capital and shall
be called special partners. The special partners are n ot liable for the
debts of th e p artnership beyond th e am ount contributed by them
respectively b u t th e nam es of th e special partners m ust n ot be used
' in connection w ith th e business. Such a partnership is formed by
executing a certificate sta tin g the nam e, th e n a tu re of th e business,
th e nam es of th e general and special partners, and their place of
residence, and th e am ount of capital contributed b y each special
p artn er, and th e period when th e partnership Is to commence and
when It will term inate. The certificate m ust be acknowledged and
filed an d recorded In th e office of th e county clerk.
P o w e r o f A tto r n e y . (See Deeds.)
P r o b a te L aw . (See A dm inistration.)
P r o te s t. (See Notes and Bills.)
R e c o rd s. (See Deeds.)
R e d e m p tio n . (See Mortgages.)
R e p le v in . The plaintiff in a n action to recover th e possession of
specific personal property m ay claim th e im m ediate delivery of the
sam e by filing affidavit and giving bond. P roperty replevined m ust
be held by th e officer, taking it tw enty-four hours, during which tim e
th e p a rty from whom th e property is tak en m ay give bond to the
plaintiff for n ot less th a n double th e am ount of th e value thereof
conditioned for th e return of the sam e or its value In case it shall
be adjudged the plaintiff is entitled thereto, an d thereupon m ay
have th e p roperty returned to him.
S erv ice. All Service of process is m ade by th e sheriff or by con­
stables, or by some one specially authorized in any p articular case,
an d m ust be issued In th e nam e of th e sta te w ith th e seal of the
officer issuing th e same affixed.
S u its . (See Actions.)
T a x e s. One-half th e annual levy for taxes becomes due Decem­
ber 20, and if n o t paid the whole am ount becomes due and there is a
p en alty of five per cent added. If the whole am ount is paid there
Is a reb ate of 5 per cent on the last half. If n o t paid by June 20 of
th e succeeding year, another 5 per cent penalty is added. W hen
th e ta x upon real estate is delinquent, it is sold for taxes on the first
Tuesday in Septem ber following. A fter sold it bears interest a t the
ra te of 15 per cent per annum and th e sam e rate upon subsequent
tax es paid and indorsed on th e ta x certificate. The ta x lien attaches
to real estate on Novem ber 1, in th e year in which th e ta x is levied.
A fter land is sold for taxes. I t m ay be redeem ed w ithin three years
from d ate of sale. The interest of a m inor m ay be redeemed a t any
tim e w ithin one year after he attain s his m ajority, and idiots and
Insane persons m ay redeem within five yehrs after th e sale.


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T r u s t C o m p a n ie s . T rust companies m ay be organized with a
capital of n ot less th&Q $100,000, and m ay receive moneys in trasr
and execute any tru s t com m itted to them , either b y an y Demon nr
b y order of any court, and m ay execute or guarantee an y bond
required b y law to be given in an y proceeding in court, and act ail
agent for th e investm ent of m oney and for th e purpose of Issuing
registering, transferring or countersigning certificates of stock bonds
or o ther evidences of debt, a c t as guardian and guarantee the fldelitv
and perform ance of d u ty of persons holding public offices or privat«
trusts, and certify and guarantee title to real estate and sell all kinds
of negotiable paper, and receive deposits from banks and other tru st
companies or public officers. They are required to keep on hand 25
per cent of deposits subject to check and 10 per cent of tim e deposits
in th e same m anner as sta te banks. Each director m ust be a stock­
holder in th e sum of n ot less th a n $1,000. T rust companies are
under th e supervision of th e bank commissioner and subject to his
exam ination.
T r u s ts a n d P o w ers. All tru sts concerning lands m ust be created,
in writing except such as arise by im plication of law.
W a re h o u s e R e c e ip ts. Practically th e Uniform "W arehouse
Receipts A ct.”
W ills. A ny person of full age and sound m ind and memory, hav­
ing an interest in real or personal property, m ay give and devise the
same to any person by last will and testam ent lawfully exeouted
subject, nevertheless, to th e rights of creditors. Wills m ust be in
writing, signed a t th e end by th e testator, or another In his presence
and by his express direction, and subscribed in his presence by two
or more com petent witnesses who saw him subscribe or heard him
acknowledge it. Wills executed w ithout the S tate in th e manner
prescribed by the law either of th e place where executed or of the
testa to r’s domicile are declared legally executed. Compliance with
these requirem ents should appear in the witnessing clause. A will
executed, proved, and allowed in another State, according to the laws
of th a t S tate, relative to property in this State, m ay be adm itted to
record in th e probate court of the county in which such property is
situated, by producing an authenticated copy. Every wfil, when
adm itted to probate, shall be filed in the office of the probate court
and recorded.

S Y N O P S IS O F

T H E L A W S OF KENTUCKY
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
Prepared and Revised by H a rr iso n & H a r r iso n , Esq.,
A ttorneys a t Law, Louisville.
(See Card in A ttorneys’ List.)
A c k n o w le d g m e n ts . Deeds executed within th e S tate may be
acknowledged before th e clerk of a county court or a n otary public,
or m ay be acknowledged before and proven by two witnesses Deeds
executed w ithout the S tate and within th e U nited States m ust be
acknowledged before the clerk of a court or his deputy, notary public,
m ayor of a city, secretary of state, commissioner of deeds, or judge of
a court; if executed w ithout th e U nited S tates m ust be acknowledged
before a foreign m inister, consul, or secretary of legation of th e United
States, or th e secretary of foreign affairs, or judge of a superior court
of th e nation where th e deed shall be executed, attested in either case
hy the officer’s seal of office. W hen th e acknowledgm ent is taken,
th e officer m ay sim ply certify th a t the deed was acknowledged before
him, and when it was done.
A c tio n s . Actions are commenced by filing in the clerk’s office of
the proper court a petition setting forth the cause of action and
causing a summons or a warning order to be Issued thereon. Non­
residents and corporations, other th a n banks, created by laws of this
S tate, are required to give security for costs.
A d m in is tr a tio n of E s ta te s . P ersonal.estates of deceased per­
sons m ust be adm inistered by th e executors nam ed in th e will, or if
these refuse to qualify, or none are nam ed, then by an adm inistrator
appointed by th e county court of th e county in which th e decedent
resided a t th e tim e of his death. A dm inistrators and executors are
required to give bond for the faithful perform ance of their duties
and w ith surety unless otherwise directed by the will. They are
required to file an Inventory of the estate w ithin three m onths and
to m ake settlem ent within two years from th e date of qualification.
A ffid a v its. An affidavit m ay be read to verify a pleading, to
prove th e service of a summons, notice, or other process, in an action;
to obtain a provisional remedy, an exam ination of a witness, a stay
of proceedings or a warning order; or, upon a m otion. An affidavit
m ay be m ade: 1. In this S tate, before a judge of a court, or a
Justice of the peace, notary public, clerk of a court, or master-com­
missioner. 2. O ut of th is S tate, before a commissioner appointed
by th e governor of this S tate; or before any other person empowered
by a commission directed to him by consent of the parties or by
order of th e court; or before a judge of a court, a justice of th e peaoe.
a m ayor of a city, or n otary public.
A p p eals. Appeals m ay be taken from a justice’s court to the
quarterly court regardless of th e am ount in controversy; from the
quarterly court to the circuit court when th e value in controversy,
exclusive of interest and costs, exceeds $25; from th e circuit court to the
court of appeals as a m atter of right in all cases in which th e title to
land, or the right to an easement therein, or the right to enforce a
sta tu to ry lien is directly involved, and in all cases when th e value
in controversy, exclusive of interest and costs, am ounts to $500 or
more, b u t when such am ount in controversy exceeds $200 and is less
th an $500, the p a rty deserving the appeal, m ay upon paym ent of th e
tax and filing the record in th e clerk's office of th e C ourt of Appeals,
enter a m otion th a t th e appeal be granted. I f the court upon exam­
ination of th e record decides th e appeal should not be granted, the
motion shajl be overruled w ithout a w ritten opinion, and no petition
for a rehearing will be entertained, b u t if th e court should be of opinion
the ends of justice require th e judgm ent be reversed then th e appeal
will be granted and a w ritten opinion will be filed. No appeal lies
to th e court of appeals from any judgm ent of a quarterly, city, police,
fiscal or justice’s court, nor from any judgm ent of the; county court.

B A N K IN G A N D

C O M M E R C IA L L A W S — K E N T U C K Y

A r b i t r a t i o n . All controversies which m ight be th e subject of a
•uit m ay be subm itted to th e decision of one or more arbitrators, or
two and their um pire. The submission m ay be in w riting or by
entry of record, and th e agreem ent of submission shall be binding on
the parties thereto, If It states the m atter to be subm itted and who
are to be th e arb itrato rs. Each arb itrato r and the um pire, if one
be chosen, shall tak e an oath to decide th e m atter In controversy
fairly and im partially according to law, justice and the equity of
the whole case. The aw ard m ust be in w riting signed by each arb i­
trator and th e um pire. If any, and shall be a final settlem ent of the
controversy between th e parties. A copy of the aw ard m ust be
given w ithin a reasonable tim e and shall be binding upon both.
A rre st. An order for th e arrest of the defendant shall be m ade
by the court in which th e action is brought or pending, a t its com­
mencement, or a t an y tim e before judgm ent, if an affidavit of the
plaintiff be filed in his office showing: 1. The n atu re of plaintiff's
daim. 2. T h at it is ju st. 3. The sum or value, which the affiant
believes th e plaintiff ought to recover. 4. T h at the affiant believes,
either th a t th e defendant is about to depart from this S tate and with
Intent to defraud his creditors has concealed, or moved from this
State, his property, or so m uch thereof th a t th e process of th e court
after judgm ent can n o t be executed; or th a t the defendant has money,
or securities for m oney, or evidences of debt* in th e possession of
himself, or' of others for his use, and is about to depart from this
State w ithout leaving property therein sufficient to satisfy plaintiff’s
claim.
A s s ig n m e n ts a n d I n s o lv e n c y . Subject to N ational B ankrupt
Law. E very voluntary assignm ent m ade by a debtor to any person
in tru st for his creditors shall be for th e benefit of all the creditors of
the assignor, in proportion to their respective claims, after the pay­
ment of th e expenses of th e tru st; except th a t property conveyed
by the deed of assignm ent, and upon which there is a valid lien,
shall be applied first to th e discharge of th e lien debt; and except
that debts due by th e assignor as guardian, com m ittee, trustee of
an express tru st created by deed or will, or as personal representative,
shall be paid in full before th e general creditors receive anything.
The in ten t o f-th e assignor in m aking th e deed of assignm ent shall
mot invalidate th e deed, unless he be solvent, and it appear th a t the
assignment, was m ade to hinder or delay creditors. The deed vests
in the assignee th e title to all the estate, real and personal, belonging
to th e assignor a t th e tim e of m aking th e assignm ent, except th a t
property exem pt b y law shall n o t pass unless embraced in the deed.
If the assignor, before m aking th e deed, shall have m ade a preferential
or fraudulent transfer, conveyance, or gift of any of his property,
or fraudulent purchase of an y property or th e nam e of another, the
property so fraudulently transferred, conveyed, or purchased shall
vest in th e assignee, and it shall be his d u ty to in stitu te such pro-*"
oeedings as m ay be necessary to recover same. If, upon demand,
he refuses to do so, any creditor m ay, and the property so recovered
shall become a p a rt of th e estate, and be distributed as other assets.
If creditors representing one-half In num ber and tw o-thirds of the
amount of debts against th e estate shall so request in writing, the
court shall remove th e assignee and appoint another in his stead.
A tta c h m e n ts . The w rit m ay issue against a defendant who is a
foreign corporation or non-resident of th e S tate; or has been absent
from S tate four m onths; or has left the S tate w ith intent to defraud
creditors; or has left his county to avoid service of summons: or
so conceals himself th a t summons cannot be served; or is about to
remove, or has removed his property or m aterial p a rt o u t of the
State n o t leaving enough to satisfy claim of plaintiff or defendant’s
creditors; or has disposed or is about to dispose of or sell his property,
or perm itted to be sold or disposed of w ith fraudulent in ten t to cheat
hinder or delay creditors. Also in action for money due upon con­
tract judgm ent or aw ard, if defendant have no property in State
subject to execution, or n ot enough to satisfy plaintiff and collection
will be endangered by delay in obtaining judgm ent and return of
nulla bona. Also in action for personal property ordered to be
delivered to plaintiff which as p a rt thereof has been disposed of,
removed, or concealed, so th a t order of delivery can n ot be executed.
Affidavit as prescribed by civil code and bond required, except no
bond required in action upon nulla bona return.
B a n k s. I t is unlawful for any person or persons, either as
individuals or co-partners to engage in or conduct th e business of
private banking in this com m onwealth. Corporations m ay be organ­
ized to conduct both a banking and tru st company business. The
boards of directors of banks and tru st companies doing business In
this S tate have full power and authority to fix th e hours of opening
and closing of said banks and tru s t companies, and m ay provide
th at on S aturday of each week such hour of closing be as early as
twelve (12) o’clock noon. A D epartm ent 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 S tate was created by a law effective July 1st, 1912.
C h a tte l M o rtg a g e s a n d D eed s o f T r u s t. No deed of tru s t 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. I t
is a penal offense, punishable by fine and imprisonm ent, for any per­
son to sell any personal property, on which there is a m ortgage of
record, w ith th e in ten t to prevent th e foreclosure of th e mortgage
and a sale of th e property.
C h eck s. The issuing of checks in this State upon banks where
the drawer has n o t sufficient funds on deposit to pay sam e is now a
criminal offense. I f am ount under $20.00 it is a misdemeanor, and
the penalty $100.00 or jail confinement one to th irty days, or both
such fine and im prisonm ent in discretion of th e C ourt or Jury. If
the check be for $20.00 or more, it is a felony and Confinement in
penitentiary for not less thaw one or more th an two years, b u t if
the drawer of th e check shall pay sam e within tw enty days after
receiving notice of th e dishonor of th e check, he shall not be prose­
cuted; or if the prosecution has been begun, i t shall be dismissed a t
cost of th e m aker of th e check.
C o n tr a c ts . A seal o r scroll is in no case necessary to give effect
to a deed or other writing. All unsealed writings stand upon the
same footing w ith sealed writings, having the sam e force and effect,
and th e sam e actions m ay be founded upon them . The S tate or
county seal, or th e seal of a court, corporation, or notary to any
writing has not, however, been dispensed with.
C o n v e y a n c e s. (See Acknowledgments.)
C o rp o ra tio n s formed under the general laws for transaction of
any lawful business. Special regulations prescribed for foreign cor­
porations doing business in th e S tate, and for banking, building and
loan, tru st, insurance, and railroad companies. Cumulative voting
prescribed. Stockholders in banks, tru st companies, guaranty com­
panies, investm ent companies and Insurance companies are liable
equally and ratably, and n ot one for th e other, for all contracts and
liabilities of corporation to extent of the am ount of their stock a t
par value in addition to am ount of such stock; b u t persons holding
stock, as fiduciaries, are not personally liable, b u t estates in their
hands are in sam e m anner and to same extent as other stockholders,
and no transfer of stock operates as a release, of any such liability,
existing a t tim e of transfer, provided action to enforce th e liability


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1587

be commenced w ithin tw o years from tim e of the transfer. Articles
acknowledged an d recorded like deeds in county in Which principal
place of business is situated, a n d à >copy thereof filed a n d recorded
in,the office of the secretary of S tate. A fter such filing an d recording,
and paym ent' to S tate of license ta x of one-tenth of 1 per cent on
its capital stock, corporation is deemed organized; b u t, before trans­
acting business other th an w ith its own stockholders, a t least, §0
per cent of stock m ust in good faith be subscribed, payable a t such
tim es as board of directors m ay require.
C o u rts . General civil an d crim inal jurisdiction is vested ih eie
cuit courts which hold term s in each county as provided by sta tu te .
C re d its. By an Act approved M arch 14, 1914, it is provided
th a t a person who shall knowingly in, person or th rough any, agency
m ake any false statem ent in writing w ith intent it shall be relied
upon, respecting his financial condition, or m eans or ability to pay,
for th e purpose of procuring delivery of personal property, th e pay­
m ent of cash, the making of a loan or credit, or extension of credit,
and procures upon faith thereof either or any of th e things or benefits
mentioned, shall be guilty of a felony and upon conviction, shall
be confined in the penitentiary not .less th an one nor m ore th an five
years.
D ay s of G race. (See Notes and Bills-of Exchange.)
D e p o s itio n s m ay be taken in all equitable actions, and in ordinary
or common law actions, where witness resides tw en ty miles or more
from place where court is held, or is absent from S tàte, an d in m any
other cases enum erated in the sta tu te where th e witness is privileged.
Depositions are taken either on notice to opposite p a rty òr upon
w ritten interrogatories. The ordinary m ethod of taking is upon
notloe, b u t where place of taking is more th an one d ay ’s trav el by
ordinary m ethods and more th an one hundred miles from th e placé
of sitting of court, the p a rty receiving notice m ay require deposition
to be taken upon interrogatories by giving notice to th a t effect to
adverse p arty or his atto rn ey upon same day, or day following one
upon which first notice was served. E xcept in divorce cases, depo­
sitions are required to be taken upon interrogatories, if all parties
against whom they are to be read have been constructively sum­
moned and have not appeared, or be defendants, or under disability
other th an coverture or infancy and ooverture combined. In several
other eases enum erated In th e civil code, the c o u rt-m ay require
depositions to be taken upon interrogatories, an d th ey m ay alw ays
be so taken by consent of all parties. Officers authorized to ta k e
depositions in this S tate: An exam iner appointed by Judge of cir­
cuit court of this district, a judge or clerk of a court, justice of peace,
or n otary public. Depositions m ay be taken o u t of this S tate before
a commissioner appointed by governor of this S tate o r before a
Judge of a court, a justice of peace, m ayor of city, n otary public,
or any other person empowered by a commission issued to him by
consent of the parties or by order oi court. If deposition is taken
upon interrogatories neither p arty is allowed to be present, either
in person or by agent attorney. The officer’s certificate m ust sta te
when and where th e deposition was taken; th a t th e witness was
duly sworn before giving It, and th a t it was w ritten and subscribed
by him in officer’s presence, or was w ritten by officer in presence
of witness and read to and subscribed by witness in presence of officer.
D e s c e n t a n d D is tr ib u tio n of P ro p e rty . 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, th en (2) to his father and m other equally
if both be living; if either be dead, th e 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 m oiety of th e estate shall
»ass to the paternal and th e other to th e m aternal kindred, in the
ollowing order: (5) to the grandfather and grandm other, or which­
ever m ay be living; If both are dead, then (6) to uncles and aunts
and their descendants; if none, then .(7) to great grandfather and
great grandm other, and so on In other cases w ithout end, passing
to the nearest lineal Ancestors and their descendants. (8) If there
is no kindred to one of th e parents, the whole shall go to th e kindred
of th e other. If there is neither paternal nor m aternal kindred, th e
whole shall go to the husband or'w ife of th e 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 th e estate. W hen any or all of a
class first entitled to take are dead, leaving descendants such descend­
ants shall take per stirpes, th a t is to say, by representation, th e shares
of their respective deceased parents. Collaterals of the half blood
shall Inherit only half so much as those of th e whole blood. In m aking
title by descent, it shall be no b ar to a p arty th a t an y ancestor,
through whom he derives his descent from th e intestate, is or has
been an alien. B astard can inherit in th e descending line only from
the m other and her kindred, and can transm it inheritance in th e
ascending line only to the m other and her kindred.
D o w er. (See H usband and Wife.)
E x e c u tio n s m ay issue upon judgm ent any tim e until collection
of it is barred by lim itation, b u t 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
tim e it reaches hands of proper officer. Execution m ay be replevied
for three m onths, any tim e before sale under same, by defendant
giving to the officer an obligation (replevin bond) payable to plaintiff,
with good security for th e am ount thereof, interest and costs. A
Judgment to enforce a lien cannot be replevied. No replevy allowed
upon judgm ent against any collecting officer, atto rn ey a t law, or
agent, for a delinquency or default In executing or fulfilling duties
of his office or place, or for failing to pay over money collected by
him In such capacity, nor against a principal by his surety, nor upon
a debt due by obligation having th e force of a Judgm ent, nor upon
Judgment for specific property, or for the property, or its value.
If land sold does n ot bring tw o-thirds of appraiser s valuation, defend­
a n t and his representatives have right to redeem w ithin a year from
the day of sale, by paying purchaser or his representatives original
purchase money and ten per centum per annum interest.
E x e m p tio n s . T he following property of persons w ith a fam ily
resident in this Commonwealth, shall be exem pt from execution,
attachm ent, distress, or fee bill, nam ely: Two work beasts, or one
work beast and one yoke of oxen; two plows and gear; one wagon
and set of gear, or c art or dray; two axes, three hoes, one spade, one
shovel; two cows and calves; beds, bedding and furniture sufficient
for family use; one loom and spinning wheel and pair of cards; all
the spun yarn and m anufactured cloth m anufactured by th e fam ily
necessary for fam ily use; carpeting for all fam ily rooms in use; one
table; all books not to exceed seventy-five dollars in value; tw o
saddles and their appendages; two bridles; six chairs; or so m any
as shall not exceed te n dollars in value; one cradle; all thè poultry
on hand; ten head of sheep, n ot to exceed twenty-five dollars in value;
all wearing apparel;, sufficient provisions, including breadstuff and
anim al food to sustain the fam ily for one year; provender suitable
for live stock, if there be any such stock, n o t to exceed seventy dollars
in value: and if such provender be not on hand, such other property
as shall not expeed such sum in value; all washing apparatus, n ot to
exceed fifty dollars in value; one sewing machine, and all fam ily
portraits and pictures; one cooking stove and appendages, and other
cooking utensils noti to exceed in value twenty-five dollars; ninety
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

Î

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

less per m onth, provided: th a t th e lien created by service of garnish­
ment»' execution, or attachm ent, shall only affect ten per centum
o f such salary, wages, or income, earned a t the tim e of service of
process; of th e salary, wages, or income earned by labor, of every
person earning a salary, wages or income in excess of seventh-five
dollars per m onth, sixty-seven and one-half dollars per m onth and
no more shall be exempt.
„ , To9ls ° t a pechanic, n ot exceeding one hundred dollars in value:
libraries o fm in isters of th e Gospel, professional libraries of lawyers
professional libraries and instrum ents of physicians and surgeons, not
to exceed in value five hundred dollars. In addition to personal
property there is for actual bona fide housekeepers w ith a fam ily
resident in this Commonwealth a hom estead exemption of so rnucn
rand including th e dwelling house and appurtenances owned by
debtor as shall not exceed in value one thousand dollars. This
d o « n o t extend to a m ortgage on or purchase money due for the land
or for debts or liability existing prior to th e purchase of the land, or
of th e erection of the im provements thereon.
. P ep o n ai property or m oney on hand or in bank to the am ount of
♦750.00 shall be exem pt from distribution and sale and shall be set
» p art by th e appraisers of th e estate of an intestate to his widow and
- cnilaren, or, if no widow, to his infant children or child surviving him.
T he appraisers shall sta te in their appraisem ent the m oney or the
articles and value of each set a p art byvfchem to the widow, or infants,
separately to th e articles appraised for sale, b u t if th e widow be present
a t tn e tim e of th e appraisem ent, or any one authorized by her in
writing, she m ay m ake her selection o ut of th e property appraised to
th e am ount of said $750.00 and said appraisers shall so report. The
provisions o f this section shall apply to cases where th e husband dies
testate, and th e widow renounces th e provisions of th e will in the
tim e prescribed by law.
The l s t day oi January, the 22d day of F ebruary, the
SOth day of May, the 4th day of July, the first Monday in Septem ber
(Labor _D ay), the 12th day of October (Columbus D ay), the 25th
d»y of December of each year, and all days appointed by the president
of th e U nited States, or by the governor of this State, as days of fasting
an d thanksgiving are declared holidays, and shall be treated as Sundny- I f an y of those days nam ed as holidays shall occur on Sunday,
th e next d ay thereafter shall be observed as a holiday.
H l ^ b a n d a n d W ife. By an act which took effect Ju n e 12.1894,
th e following im p o rtan t changes were m ade In the common law of
coverture which theretofore prevailed in Kentucky, Marriage gives
to th e husband during th e fife of th e wife no interest in any of
th e wife s property. She has full power to contract and to bind
herself and her property, except th a t she can not bind herself to
answer for the debt, default, misdoing of another, exoept as to property
set a p a rt for th a t purpose by m ortgage. She m ay sell and dispose
of personal property as if unm arried, b u t m ay n ot 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 abandonm ent by the husband. A fter the
death of either husband or wife the survivor shall have a life estate
in one-third of all th e realty of which th e 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 th e decedent left after the paym ent of debts. A bandonm ent and
living in ad ultery by either party, or divorce works a forfeiture of
these rights.
I n t e r e s t . The lawful rate of interest is 6 per centum per annum ,
and contracts for a greater rate are void as to the excess of interest.
J u d g m e n ts . A judgm ent does n ot constitute a lien on property
in this State. All judgm ents bear interest from their dates. (See
Executions and Lim itations.)
.
L im ita tio n s . The following are the periods w ithin which actions
m ust be brought, the tim e commencing to run from the accrual of
th e cause of action. Fifteen years: Actions to recover real property;
actions upon judgm ents and w ritten contracts, except negotiable
Instrum ents. 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
sta tu te ; actions for trespass to real or personal property or for dam­
ages for withholding same; for the specific recovery of personal prop­
erty ; actions upon negotiable instrum ents; actions upon accounts
between m erchants, and actions for relief from fraud or mistake.
Two years: Actions upon m erchant’s accounts for goods sold.
One year: Actions for injury to person or character and for breach of
promise of m arriage.
N o tes a n d B ills of E x c h a n g e . An a c t relating to negotiable
Instrum ents became a law June 13, 1904. Section 1 declares th a t an
Instrum ent to be negotiable m ust conform to the following require­
m ents. (1) I t m ust be in writing and signed by th e m aker or
drawer. (2) Must contain an unconditional promise or order to
pay a sum certain in money. (3) Must be payable on dem and, or
a t a fixed or determ inable future tim e. (4) Must be payable to the
order of a specified person or to bearer. (5) W here the Instrum ent
is addressed to a drawee, he m ust be nam ed or otherwise indicated
therein with reasonable certainty. Days of grace are abolished.
The signature of any p arty m ay be m ade by an agent duly authorized
In writing. Every negotiable instrum ent is payable a t the tim e fixed
therein: when the day of m atu rity falls upon Sunday, or a holiday,
tn e Instrum ent is payable on the next succeeding business day.
P o w ers o f A tto r n e y . Powers of attorney to convey real or per­
sonal property m ay be acknowledged, proved and recorded in the
proper office In the m anner prescribed for recording conveyances. If
th e conveyance m ade under a power, is required by law to be recorded
or lodged for record to m ake the same valid against creditors and pur­
chasers. then the power m ust be lodged or recorded in like manner.
P ro te s t. { Where any negotiable instrum ent has been dishonored
It m ay be protested for non-acceptance or non-paym ent as th e case
m ay be; but protest Is n o t required, except in the case of foreign bills
of exchange. I t is the safer practice to protest In all cases.
T a x a tio n . Taxes due th e S tate by banks and tru st companies are
payable directly into the S tate treasury on or before th e first day of
Ju ly succeeding reports by th eir chief officers required to be m ade to
auditor of public accounts, and taxes to counties, cities, towns and
districts are paid a t th e tim e fixed by law for paym ent of like taxes.
W ills. Any person of sound m ind and over tw enty-one years of
age m ay m ake a will. Wills m ust be In w riting w ith the nam e of
th e testa to r subscribed thereto either by himself or by some other
person in his presence and by his direction. If n o t wholly w ritten
by th e te s ta to r the subscription m ust be m ade or th e will acknowledged
by th e testa to r in th e presence of two witnesses, who shall subscribe
th eir nam es in the presence of the testator. The will of a person
domiciled o u t of this S tate Is valid as to personalty, if executed accord­
ing to th e law of the domicile; b u t to be valid as to lands, It m ust be
executed as required by th e law of this S tate. The county court
has exclusive original jurisdiction over th e probate of wills.


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S Y N O P S IS O F

T H E L A W S OF LO UISIA NA
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
Revised by Messrs. M e r r ic k , G e n sl e r & S chw arz ,
A ttorneys a t Law, New Orleans.
(See Card In A ttorneys’ List.)
A c c o u n ts . (See Acknowledgments.)
A c k n o w le d g m e n ts of deeds executed w ithin th e S ta te may be
m ade before a judge, notary public, parish recorder or his deputy, in
the presence of two witnesses. These witnesses m ust be over fourteen
years of age. In other States, before a commissioner of Louisiana,
or any officer authorized to take depositions in the S tate where he
'resides, b u t th e official character of such officer m ust be properly
verified. A Louisiana commissioner m ay certify to th e official posi­
tion of an y public officer in the S tate for which he is appointed. A
deed to be authentic and to be admissible in a court of iustice with­
out other proof of signature, m ust be acknowledged and signed before
a notary or commissioner of deeds. In other states any oath or
acknowledgm ent m ade before a notary public, duly appointed in such
states, when certified under the hand and official seal of such notary
shall have th e same force and effect w ithout fu rth er proof of the
signature, seal and official character of such notary, as if taken or
■J1 . ? by or before a Louisiana commissioner residing in such State.
Act 140 of 1896. In foreign countries every deed, conveyance, mortgage, sale, etc., m ade or taken before any am bassador, minister,
eharge d affaires, secretary of legation, consul-general, consul, viceconsul, or commercial agent, and every acknowledgment, attestation,
or authentication of any of said instrum ents, oaths, etc., m ade by
wry of said officers under their official seals and signatures shall have
the full foroe and effect of an authentic act executed in this State.
No witnesses necessary. P a rty appearing before any of said officers
need n ot be a resident of the place where said officer is located.
Notarial copies of original when deposited in this sta te in a notary’s
office nave full force and effect of authentic copies of acts executed
In this S tate. [Act 164 of 1898.]
™
A ctio n s. _ Commenced by petition setting forth pause of action,
articulateiy in num bered paragraphs, signed by plaintiff or his attorney
and duly sworn to. Plaintiff m ust give resident security for costs or
m ake deposit to cover same if dem anded. (See Act 300 of 1914
regulating pleadings and practice.) A fter filing of petition, defendant
is cit%d to appear ten days after receipt of citation in D istrict Courts
and Justice of Peace courts outside of city of New Orleans. In city
courts of New Orleans, defendant m ust appear three days after receipt
t?* citation. N either day of service nor day on which answer must
1?® , ^
included in delay. If defendant fails to appear, judgment
by default is rendered against him . In district courts, such judgment
is confirmed two judicial days after prelim inary entry of default. In
Justice of Peace courts judgm ent of default is confirmed the same day
as th a t on which default is entered.
A d m in is tr a tio n o f E s ta te s by executors, adm inistrators, or
tutors who are ex-officio adm inistrators—also by dative executors—
where there is no heir present or agent of heir, public adm inistrator
takes oharge. A non-resident executor of a will m ust in all cases give
bond; a resident does n ot unless required by creditors. Administra­
tors and executors of other states m ust open succession of deceased
In the courts of this S tate, and be reoognlzed as such here before they
•an sue or be sued or transfer property In this S tate, Stock In local
corporations m ay be transferred by non-resident, executors, etc.,
w ithout th e necessity of securing an order from th e local court, but
no transfer can be m ade until tne inheritance tax is adjusted No
debts can be paid by adm inistrator w ithout authorization of probate
court. T he adm inistrator or executor presents to th e court an
account or tableau of distribution setting forth th e paym ents and
disbursem ents he proposes to make. P arties interested are notified
by publication to show cause within ten days why th e account so filed
should not be approved. Any p arty interested m ay oppose the
account by opposition in writing a t a n y tim e within the said ten days.
In absence of opposition account is hom ologated upon production of
satisfactory evidence by adm inistrator or executor, and th e funds
ordered distributed in accordance therewith.
. Claims against estates should be presented in writing to th e admin­
istrator or executor. Should he approve the same in writing, no
further action is required except to see t h a r t h e claim is placed "upon
his account when filed. Should be decline to recognize th e claim,
creditor m ay file suit against succession representative and obtain a
judgm ent to be paid in ordinary course of adm inistration. I f there
is no danger of prescription, creditor m ay aw ait filing of account and
then oppose sam e of claim, not included.
A ffid a v its. (See Acknowledgments.)
A lien s. There is no law excluding them from buying or holding
lands. T hey are only excluded from voting.
A r b itr a tio n . Agreem ents to subm it to arbitration recognized by
law. A rbitrators m ust be sworn, otherwise decision Is n o t binding.
S tate board of arbitration of labor troubles established. TAct 139
af 1894.]
A rre s t for debt m ay be m ade on affidavit th a t the deb t is really
due, and th a t petitioner verily believes th a t debtor is about to remove
from th e S tate perm anently, w ithout leaving in it sufficient property
to satisfy his dem and; and th a t be does n ot take his oath w ith inten­
tion of vexing debtor, b u t only in order to secure his dem and. Debtor
m ay be discharged by disproving facts; by giving bond, by making

B A N K IN G A N D C O M M E R C IA L L A W S — L O U I S I A N A
surrender, b y delivering to shenll property sufficient to satisfy
demand. A rrest ol th e deDtor only secures nls presence to answer
the suit; he cannot be held for the paym ent of th e debt. Minors,
Interdicted person and women not subject to arrest for debt.
A ssig n m e n ts a n d In s o lv e n c y . S tate Insolvent laws superseded
by National B ankruptcy act.
A t t a c h m e n t . W rits of attachm ent Issue on application of credi­
tor under oath, when th e debtor resides o ut of th e S tate; when he
«onceáis him self to avoid being cited; when he has m ortgaged, assigned
or disposed of, or is about to mortgage, assign, or dispose of his
nroperty, rights, or credits, or some p a rt thereof, w ith in ten t 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 d e b t w ith in ten t to place it beyond the reach
of his creditors, or. If d eb t not due, is about to remove his property
out of th e S tate. Creditor m ust furnish bond equal to the am ount
olalmed to be due, w ith a t least one solvent surety, residing within
the jurisdiction of th e court, conditioned for paym ent to any party
injured by issuance of w rit of all dam ages sustained by him in case
It is decided th a t th e attach m ent was wrongfully obtained. (Act
No. 7. 1888.) Garnishm ent m ay be had as an accessory either to
a writ of attach m en t or fieri facias.
B a n k s. Banking corporations organized under banking laws
adopted in 1855, am ended In 1888, in 1892, and in 1902. Savings,
deposit, an d tru st companies provided for by A ct 150 of year 1888,
amended by A ct 95 of 1892, which is now am ended by A ct 189 of
1902. The num ber of persons organizing mustgbe five or more. No
■Dedal act of Incorporation can be passed. By Act 189 ol 1902,
the general banking act of 1855 and the am endatory acts of 1888 and
•f 1892 áre am ended as follows; 1. Period of tim e m ust be fixed
m act n o t to exceed ninety-nine years.
2. Banks c a n n o tn o ld real
estate for longer tim e th an five years, except such as necessary for
the transaction of th eir business, or except th a t held as agent or
trustee. 3. All m anagers and directors shall be citizens of Louisiana.
4 Safe deposits and tru st banks w ithout power to Issue bank notes,
may be organized under this law w ith a capital of $50,000 or more,
of which capital a t least $10,000 shall be paid up before commencing
business, fn incorporated towns with less th an 20,000 inhabitants
must have cash capital of n o t less th an $30,000, which m ust be paid
ap before can commence business. I t m ay be m ade a receiver,
trustee, assignee or syndic, and execute tru sts of every description.
Money or other valuables deposited by m arried women or minors
may be drawn o ut w ithout th e au th o rity of their husbands or tutors.
Under Aot 45 of 1902, banks organized to do a savings, safe deposit
and tru st banking business m ust be composed of more th an five
persons, m ay be organized for n o t longer th an ninety-nine years,
may n o t hold real estate for longer period th an ten years, except
such as is held as agent or trustee, or necessary for transaction of
their business; m ay accept and execute tru sts or agencies of all
descriptions, m ay be appointed by any person or by court executor,
administrator, syndic, receiver, curator, tu to r, trustee or assignee.
Capital stock considered as security for faithful performance of duty,
though court m ay require o th er security, and m ay require the state
examiner of banks to investigate th e affairs and m anagem ent of
the bank. Such banks can n o t issue notes and m ust have a capital
not less th an $100,000, which m ust be paid up In cash. (See Act 121
of 1910, am ending Act 45 of 1902 as to capital required in cities of
less than 30,000.) (See also Act 179 of 1902. and am endm ent thereof,
Act 140 of 1906 and am endm ent thereof Act 152 of 1910 and am end­
ment thereof Act 96 of 1912.) Act 238 of 1910, amending A ct 45
of 1902, provides for branches. Act 112 of 1910 creates a State
Banking D epartm ent having supervision over all sta te banks. Amend­
ed by Act 48 of 1912.
,
^ ■ . ,■ . ■
C h a tte l M o rtg a g e s n o t legal in this S tate except as to lumber,
logs, live stock, vehicles of ah kinds, all kinds of m achinery, all well
casing, line pipes, drilling rigs and tanks.
These m ay be mortgaged
but the m ortgage on such properties not legal unless it is owned by
the mortgagor in excess of m ovable property granted him and exempted from seizure under Act 244 of th e Constitution of 1898.
(See Act 65 of 1912, am ended by Act 155 of 1914.)
C o llaterals, m ust be delivered to be effelctual, 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.)
■
.
C o n v e y an ces. All agreem ents affecting real property m ust be
in writing, and transfers and m ortgages, etc., m ust be recorded in
ithe place where th e property Is situated to affect the rights of third
persons. Deeds are m ade under private signature or by a c t passed
before a no tary public in th e presence of two witnesses. Both vendor
and vendee sign, though signature of vendee is not essential, as any
act of acceptance will answer. T he n otary in Parish of Orleans pre­
serves th e originals of deeds passed before him and certified copies
given by him are received as evidence, in th e courts. Every notarial
deed should contain (1) d ate of act and place where it was passed, (2)
names and surnam es and qualities of contracting parties, (3) description
of the property, etc., (4) price of transfer and term s and conditions.
(5) The m arital statu s of all parties m ust be given. When a married
woman executes a deed she m ust be authorized by her husband. The
husband acts alone in th e sale of com m unity property; the signature
of the wife being unnecessary.
^
____
C o rp o ra tio n s. Any num ber of persons, exceeding six, m ay form
themselves into corporations for literary, scientific, religious, and
charitable purposes; for works of public improvement, and generally
all works of public u tility and advantage; and any num ber of persons,
not less th a n three, m ay form themselves into a corporation for the
purpose of carrying on m echanical, mining, or manufacturing business,
except distilling or m anufacturing Intoxicating liquors, with a capital
not less th an $5,000 or more th an $1,000,000. Any num ber of per­
sons, n o t less th a n three, m ay form themselves into a corporation on
complying with the general corporation laws, for the purpose of carry­
ing on any lawful business or enterprise n ot otherwise specially pro­
vided for, except stock-jobbing. F ifty per cent of capital, stock m ust
be subscribed before filing articles of incorporation and 50 per cent
of all stock subscribed m ust be paid in before corporation en­
gages in business an d th e rem ainder in twelve m onths under
penalty of dissolution. The legislature^ can" not pass a special act
conferring corporate powers. Corporation com m itting a trespass
ór damage m ay be sued a t place where it occurred. [Act
o.
1894.] All corporations hereafter organized m ust have their Char­
ters, etc., recorded in th e office of th e secretary of state. [Act
59 to 1898.] (See act 154 of 1902 for form ation of corporations tor
works of public im provement.)
Act 120 o i l 902 provides for organ­
ization, etc. of local and foreign building and loan or homestead
associations. Three or more persons m ay form a corporation to
carry on an y business specified in charter th a t would be lawful for
any individual to carry on. May carry on any nam ed business or
different branches of business, w hether related or not. Must nave
capital of n e t less th an $3,000.
[Act 78 of 1904.]
No corporation
can declare dividends out of its capital stock, under penalty of for­
feiture of its charter. Meetings of corporations m ust be held a t
domicile (Act 63 of 1910).
.
fig
.
_
Foreign Corporations m ay be licensed and taxed by a mode differ­
ent from th a t provided for home corporations. No domestic or for­
eign corporations shall do an y business in this S tate w ithout haying
one or more known places of business and an authorized agent or
agents In th e S tate upon whom process m ay be served. All corpora-


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1589

tions (except m ercantile corporations) domiciled o u t of th e S tate and
doing business in the S tate in default of filing with th e secretary of
sta te a declaration of th e place of its locality or domicile together with
the nam e of its agent in th e S tate upon whom service of 'process m ay
be made, m ay be sued upon any cause of action in any parish where
the right of action arises.
_
,
. . .
...
Foreign corporations m ust file in office of secretary of sta te a w ritten
declaration setting forth and containing th e place or locality of its
domicile, the places in th e S tate where it is doing business, and th e
nam e of its agent or other officer in this S tate upon whom process m ay
be served. (Act 54 of 1904 am ended by Act 284 of 1908. A ct 284
of 1908 am ended by Act 243 of 1912. See. A ct 194 of 1912.)
A ct 267 of 1914 r e la tin g to c o rp o ra tio n s re p e a le d several
p rev io u s a c ts a n d u n d e r ta k e s to e m b o d y in o n e a c t a ll e s s e n ­
tia l d e ta ils w ith re s p e c t to t h e o rg a n iz a tio n , p o w e r a n d d u tie s
of tr a d in g c o rp o ra tio n s , fo re ig n a n d d o m e s tic . (As t o n o n ­
tr a d in g c o rp o ra tio n s see A ct 259 of 1914.)
C o u rts. Terms and Jurisdiction, In parishes other th an Orleans:
Justices’ courts—exclusive jurisdiction up to $50, and concurrent
with the district courts, between $50 and $100. 2. D istrict courts—
concurrent w ith justices’ courts, between $50 and $100.; exclusive for
all olvil m atters over $100, and in all probate m atters and appellate
jurisdiction in all civil m atters in justices’ courts. In Orleans parish:
1 . City courts—exclusive jurisdiction up to $100. 2. Civil district
courts—exclusive over $100. Justices and city courts open a t all
times. In parishes other th an Orleans, district courts shall hold con­
tinuous sessions during ten m onths of the year. In parish of Orleans,
civil district court sits frond October 15th to end of June, b u t shall
remain open on all legal days during the whole year for granting inter­
locutory orders, issuing writs, tria ls of rules to quash same, trying
proceedings instituted, or on appeal therein by a landlord for the
possession of leased property, partition proceedings, an a for such
special probate and insolvency business, as th e court en banc m ay by
rule determine. On all am ounts up to $2.000. inclusive, an appeal
m ay be taken to the court of appeals, from the city and district courts
respectively, and on all am ounts over $2,000, to the sta te suprem e
court. An appeal lies on both law and facts. Appeals from the city
courts shall be tried de novo.
D ays of G race. Abolished.
D e p o sitio n s. To take testim ony of witness residing out of parish
or S tate it is necessary to file m otion duly sworn to showing non-resi­
dence and m ateriality of evidence. W ritten interrogatories are pre­
pared and served on opposite p arty, or his counsel, who has three days
in which to cross. Commission th en issues, directed to some proper
officer, w ith interrogatories and cross Interrogatories annexed, who
m ust cause witness to appear before nlm to answer under oath the
direct and the cross interrogatories, lie should reduce answer to
writing, read same to witness and cause witness to sign same. The
officer then prepares a process verbal of the whole, attaches It to the
commission, interrogatories, eto., and should retu rn same to the court
Issuing the commission within the tim e fixed therein for taking the
deposition. The deposition of a fugitive from justice is n ot admissible
in evidence. (Also see Act 176 of 1910.)
D e s c e n t. If one dies leaving no descendants, b u t a father and
m other and a brother and sister, or descendants of these last, the
succession is divided into two equal parts, one goes to fath er and
m other, the other to brothers and sisters or their descendants. If
either father or m other of deceased dies before him, the portion which
would have been inherited by such deceased parent goes to the
brothers and sisters of the deceased, or their descendants. If deceased
left neither descendants nor brothers nor sisters, nor descendants from
them , nor father nor mother, b u t only other ascendants, th ey inherit
to the exclusion of all collaterals. If ascendants in paternal and
m aternal lines are all of the same degree, the estate is divided into
two parts, one goes to ascendants on the paternal and the other to
ascendants on the m aternal side. If there is in th e nearest degree
but one ascendant in the two lines such ascendant excludes all other
ascendants of a more rem ote degree. If one dies leaving no descen­
dants, and his father and m other survive, his brothers and sisters,
or their descendants, take half of his estate. If the father or m other
only survive, brothers and sisters, or their descendants, take threefourths. If one dies leaving no descendants nor father nor m other,
his brothers and sisters ,or their descendants, take all the estate.
The partition of the half, the three-fourths, or the whole of a suc­
cession falling to brotherx and sistqrs as abo ve set forth, is m ade equal
if they are of thè same m arriage, if of différén* m arriages the succession
is equally divided between the paternal and m aternal lines of the
deceased. If deceased died w ithout descendants, leaving neither
brothers nor sisters, nor descendants from them , nor m other nor
father, nor ascendants in the paternal or m aternal lines, his succession
passes to his other collateral relations, th e one nearest in degree
excluding th e others. When th e deceased has left neither lawful
descendants nor lawful ascendants, nor collateral relations, th e law
calls to his inheritance either the surviving husband or wife, or his
or her natural children, or th e State. If natural m other left no
lawful children or descendants, her natural children, acknowledged
by her, inherit to the exclusion of her father and m other and other
ascendants or collaterals of lawful kindred. N atural children inherit
from their natural father, who has acknowledged them , when he has
left no descendants nor ascendants, nor collateral relations, nor
surviving wife, and to the exclusion only of the State. Donations
inter vivos or m ortis causa cannot exceed tw o-thirds of the property
of the disposer if he leave a t his decease a legitim ate child, one-half
if he leaves two children, and one-third if he leaves three or more.
An inheritance tax is levied upon all inheritances, legacies and d o n a-:
tions, provided no direct inheritance or donation to an ascendant or
descendant below $10,000 shall be taxed. Tax is 2 per cent on direct
inheritances and donations to ascendants or descendants or surviving
Wife or husband and 5 per cent for collateral inheritances and donations
' to collaterals or strangers. Bequests to educational, religious or
charitable institutions are exempt. Inheritance tax n ot due when
property inherited, bequeathed or donated shall have borne its ju st
proportion of taxes prior to tim e of such donation, bequest, or inherit­
ance. R. C. C. 915 am ended to read ‘‘In all cases when either hus­
band or wife shall die leaving no descendants, nor ascendants and
without having disposed by last will and testam ent of his or her share
in the com m unity property, such undisposed of share shall be inherited
by the survivor in full ow nership.” (Act 57 of 1910.) •
D ivprce. (See Separation from Bed and Board.)
D ow er. (See Married Women.)
E x e c u tio n . P roperty taken under a w rit of fieri facias m ust be
advertised and appraised, and can n ot be sold for less th a n tw o-thirds
of the appraised value, u ntil it has been re-advertised. Advertise­
m ents of movables three tim es in ten days—of real estate once a
week for th irty days. If tw ò-thirds of appraised value is n o t bid;
property m ust be re-advertised for fifteen days, and sol'd on a credit'
for twelve m onths for w hatever it will bring. There is no redem ption
of property sold under execution or m ortgage. No stay of execution
is given except on appeal, and execution m ay issue a t any tim e after
the delay for appealing suspensively has expired. A ct 113 of 1906
authorizes sheriffs and constables to p u t purchaser of seized property
in possession’.
E x e m p tio n s . To head of family, real estate if owned and occupied
as a residence, together w ith certain furniture, stock, im plem ents,
provisions, etc.; thé property n o t to exceed $2.000, and Drovideij the.

i59Cf

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

person claiming the benefit of th e hom estead execute a w ritten declara­
tion of hom estead (Acts 1880, No. 114), and no exem ption if wife
has separate property w orth over $2,000. No registry required in
parishes o th er th a n Orleans. (Operative Ja n . 1, 1890.) Widow or
m inor children surviving is entitled to $1,000 out of deceased hus­
b an d ’s estate, if in necessitous circum stances, b y preference -over
even a first-m ortgage creditor. Sheriff or constable can n o t seize
linen and clothes of debtor or his wife, nor his bed, nor those of his
family, n or his arm s and m ilitary accoutrem ents, nor tools and instru­
m ents and books, sewing machines necessary for th e exercise of his
o r h er calling, trade, or profession, by which he m akes a living, the
rig h t of personal servitude, of use and habitation, of usufruct to the
estate of a m inor child, th e income of to tal property, m oney due for
salary of an officer, wages or recompense for personal service (laborers’
wages) cooking stove, plates, etc., fam ily portraits, musical instru­
m ents played on by fam ily. (Acts 1876, No. 79.)
F r a u d vitiates all contracts. A ction barred b y one year lim itation
to annual sale on account of fraud. For fraud on p a rt of purchasers
Of goods see Act 114 of 1912 am ending Act 94 of 1896.
G a r n is h m e n t. Wages earned o ut of this S tate and payable out
of th is S tate, shall be exem pt from attachm ent or garnishm ent in all
cases where cause of action arose out of this S tate, and it shall be the
d u ty of garnishees in such cases to plead such exem ption unless the
defendant is actually served w ith process. [Act 165 of 1904.] (See
A ttachm ent.)
H u s b a n d a n d W ife. (See Married .Women.)
I n t e r e s t . Legal rate is 5 per cent, b u t 8 per cent m ay be agreed
upon in writing. If higher th a n 8 per cent is charged, it is reducible
to 8 per cen t. I f paid, it m ay be sued for and recovered w ithin two
years.
J u d g m e n ts recorded in th e office of th e parish recorder become
m ortgages from date of record upon all real estate of th e debtor, and
m ay be th u s recorded In an y parish where debtor owns real estate.
T h ey are valid for teh years, when they m ust be renewed.
L ie n s o r P riv ile g e s . The following have special privileges, viz. :
1. Lessor’s privilege. 2. Privilege of th e creditor on th e thing
pledged. 3. Privilege of a depositor on th e price of a thing deposited.
4. Privilege for expenses incurred in preserving thing. 5. Privilege
of th e vendor of movable effects so long as they are in th e possession
of th e vendee. 6. Privilege of th e innkeeper on th e effects of th e
traveler. Privileges resting upon immovables are as follows, viz.:
1. The vendor on th e estate by him sold, for th e paym ent of th e
price or so m uch of it as is unpaid, w hether it was sold on or w ithout
a Credit, 2. Architects, undertakers, bricklayers, painters, m aster
builders, contractors, sub-contractors, journeym en, laborers, cartmen, and other workmen employed in constructing, rebuilding, or
repairing houses, buildings, or m aking other works. 3. Those who
have supplied th e owner or o ther person employed by th e owner,
his agent, or sub-contractor, with m aterials of any kind for th e con­
stru ctio n o r repair of an edifice or o ther work, when such m aterials
have been used in th e erection or repair of such houses or other works.
[Art. 3252.] Privilege on crops to be recorded (Act of 1890.) The
vendor of an agricultural product of th e U nited S tates has a five days’
privilege for unpaid, purchase price in preference to all others. P rivi­
lege granted employes in saw mills, etc. (Act 145 of 1888, am ended
b y Act 52 of 1910 and a ct 23 of 1912.
L im ita tio n s to S u its . Prescription—Accounts stated and
acknowledged In w riting are prescribed only by ten years. [Act of
1888.] Personal actions one year: Action for to rts of all kinds; for
in ju ry to or non-delivery of m erchandise shipped on vessels; for fees
of justice, notary, or constable; for Innkeepers^ accounts; for accounts
a t retailers of liquors; for wages of laborers or sailors; for freight; and
for tu ition b y m onth. Three years: Action for arrearages of rent
charges, or hire of movables or im movables or money lent; for salaries
of overseers, olerks, or tuition by q u arter or year; for fees of physicians,
apotheoaries, attorneys, sheriffs, clerks, and recorders; on open
accounts of m erchants, w hether wholesale or retail, and others. F our
years: Actions by minors against their tutors, counting four years
from m ajority. Five years: A ction on bills bf exchange or promis­
so ry notes, counting from m aturity, and for nullity of contracts or
wills; for recislon of partitions; to set aside public and judicial sales
for Informalities. Ten years: All other actions; th e right to a usu­
fru ct o r servitude; all judgm ents, w hether rendered within or w ithout
th e S tate, b u t judgm ents m ay be .revived before lapse of ten years,
an d are th en good for ten years from date of revival. Prescription
does n o t run against minors or persons under interdiction. H usband
an d wife can n o t prescribe against each other.
L im ite d P a r tn e r s h ip . (See Partnership.)
M a rrie d W o m e n . Act 94 of th e Legislative Session of 1916 pro­
vides th a t a m arried woman of this S tate shall be com petent to con­
tra c t and bind and obligate herself personally and w ith reference to
her separate and paraphernal property, and to appear in C ourt and
to sue and be sued to th e sam e extent and in th e sam e m anner as
though she were a femme sole; provided th a t nothing herein con­
tained shall be deemed or construed to affect in any way th e statu tes
of th is State,«establishing and regulating th e m atrim onial com m unity
of acquets and gains, and prescribing ’w hat shall be deemed com- m u n ity and w hat be deemed separate property of th e other spouse.
Revenues of all separate property adm inistered by th e husband, and
all property acquired by either husband or wife after marriage, except
b y donation or. inheritance constitute p a rt of com m unity, unless
bought w ith th e separate m eans of either and as a separate acquisitioh. Wife has no dower in her husband’s real estate. T he wife
c a n have no claim upon th e property of th e husband to th e prej­
udice of th ird parties, unless recorded. W here one of th e spouses
is agent for th e other, he or she m ay be witness for th e other in
a m atter connected with th a t transaction, otherwise husband or wife
connot testify in favor or against th e other even though both litigants
consent,
After dissolution of m arriage by death or divorce th e sur­
vivor is entitled to one-half of all property rem aining after paym ent
of debts, acquired during m arriage, and in case of death, th e usufruct
of th e other half, unless this half is disposed of by will of deceased
spouse. W ife cannot be a witness to husband’s will.
M o n o p o lies o r T r u s ts are regulated and rights are given against
them similar to those existing under Federal Law. The sta te author­
ities m ay take action and th e individual m ay recover threefold dam ages
sustained. See House Bills Nos. 7 and &, extra session 1915, approved
Ju n e 10, 1915.
M o rtg a g e s can be foreclosed a t any tim e a f te r m atu rity of the
debt, b y in stitu tin g a regular su it an d obtaining judgm ent thereon, or
If th e a c t im ports a confession of judgm ent in favor of th e holder, he
can apply to th e court for an order directing th e sheriff to seize and
sell th e property. All m ortgages m ust be recorded before th ey can
have an y effect as against th ird parties. T rust deeds are n o t legal,
an d chattel m ortgages are unknown to the laws of Louisiana except
as stated under heading “ chattel m ortgages.” T here is no redem p­
tion of property sold under mortgage. All ta c it m ortgages have
been abolished since 1870. In m aking sales or giving a m ortgage
upon his property, it is n ot necessary for the husband to obtain the
signature of the. wife. A mortgage resulting from recording a judgm ent
can n o t have th a t effect until after adjournm ent of court. [Act 1888.]
Lessees obligated to erect buildings, etc., upon leased property, can
m ortgage th é lease, together With th e im provements, etc. (Act 21
of 1908.) .Leases and contracts to explore for oil, gas and m inerals
xhay b e m ortgaged (Act 232 of 1910).


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N e g o tia b le I n s t r u m e n t s . "N egotiable In stru m en t Act” (No
64 of 1904) changes in m any respects th e laws form erly applicable to
bills and notes. U nder it, days of grace, which form erly were custom­
ary, are abolished. Instrum ents are payable to bearer if m ade pavabl«
to th e order of a fictitious or non-existing person, when such fact is
known to the one m aking it so payable; when nam e of payee doe*
n ot p u rport to be nam e of an y person; or when the only or last indorse­
m ent is in blank. W hen there is a discrepancy between th e word*
and th e figures of an instrum ent, th e sum denoted by th e words is
th e sum payable. Two or more persons signing Instrum ent contain­
ing words, “ I prom ise to p ay ,” are Jointly and severally liable thereon
P resentm ent for paym ent is unnecessary to bind p arty primarily
liable, b u t is necessary to charge draw er or Indorser. Notice of dis­
honor m ust be given to draw er and indorser when instrum ent has
been dishonored b y non-acceptance or non-paym ent, otherwise they
are discharged. A bill of exchange does n ot operate an assignment
of funds In hands of drawee available for paym ent thereof, and drawee
is n ot liable till he accepts same. H older m ay require acceptance
to be w ritten on bill, and if refused m ay tre a t the bill as dishonored
An acceptance w ritten on paper other th an a bill, and an uncondi­
tional w ritten promise to accept a bill before it is drawn, binds the
acceptor only in favor of a purchaser for value on faith thereof
Drawee has tw enty-four hours to decide w hether he will accept or
not. A drawee who destroys a bill presented to him for acceptance
or who fails to return the bill within tw enty-four hours, is deemed to
have accepted the same. W here a signature is so placed upon a
negotiable instrum ent th a t it is n ot clear in w hat capacity th e person
m aking sam e intended to sign, he is deemed an indorser. Foreign
bills m ust be protested for non-acceptance or non-paym ent. Where
a bill does n ot appear on its face to be a foreign bill, protest thereof
in case of dishonor is unnecessary; A check m ust be presented for
paym ent w ithin a reasonable tim e or draw er will be discharged from
any loss caused by delay. Bank is not liable to holder of a check
until it accepts or certifies same. W hen th e last day to do an act
required or perm itted to be done under the a ct falls on a Sunday or
legal holiday, it m ay be done on th e nex t succeeding secular or busi­
ness day. When day of m atu rity falls on a Sunday or a holiday, the
Instrum ent is payable on nex t succeeding business day. Instrum ents
falling due on S aturday are to be presented for paym ent on next
succeeding business day, except th a t instrum ents payable on
m ay, a t option of holder, be presented for paym ent before 12 o’clock
noon on S aturday when th a t entire day is n o t a holiday. If the day
or days nex t succeeding th e protest for non-acceptance or non-pay­
m ent shall be days of public rest or legal holidays or legal half holi­
days, th en th e day nex t following shall be com puted as th e first day
after th e protest. “Service of citation shall n ot be waived, nor judg­
m ent confessed, by any docum ent under private signature executed
prior to th e m atu rity of th e obligation sued on.” [Article 91, Con­
stitu tio n 1898.] Acceptance m ust be in writing and signed by
drawee. I t m ust n ot express th a t drawee will perform his promises
by any other m eans th a n paym ent of money. (Act 189 of 1908.)
P a r tn e r s h ip , L im ite d a n d S p ecial. Stipulations th a t one shall
participate in th e profits and shall n o t contribute to losses is void,
both as regards partners and third persons. P artnerships are divided
as to th eir object Into commercial and ordinary partnerships. Com­
mercial partnerships are such as are form ed: 1. F or th e purchase
of any personal property, and the sale thereof either in the same
sta te or changed by m anufacture. 2. F or buying or selling any
personal property whatever, as factors or brokers. 3. F or carrying
personal property for hire, in ships or other vessels. Ordinary part­
nerships a re all such as are n ot commercial. There is also a species
of partnership which m ay be incorporated w ith either of th e other
kinds, called partnership in commendam. I t is formed by contract,
by which one person or partnership agrees to furnish another person
or partnership a certain am ount, either in property or money, to be
employed by th e person or partnership to whom it Is furnished, in
his or their own nam e or firm, on condition, of receiving a share in
th e profits. In th e proportion determ ined by th e contract, and of being
liable to losses and expenses to th e am ount furnished and no more.
P artn er in commendam cannot bind other partners by his act. Part­
n ership in commendam m ust be m ade in writing; m ust express amount
furnished or agreed to be furnished; th e proportion of profits which
partner is to receive and expenses and loses he is to bear; m ust state
w hether it be received in goods or money, etc.: m ust be signed by
parties in presence of a t least one witness and recorded in) full within
six days In m ortgage office. If branch houses are established the con­
tra c t m ust be recorded In parish Where branches are located. If
partner in commendam allow his nam e to be used, or if he take any
p a rt in the business of the partnership, he will be liable as a general
partner. O rdinary partners are not bound in solido for debts of
partnership, and no one of them can bind his partners unless they
have given him power to do so; each is bound for his share of th e debt
in proportion to the num ber of partners. Commercial partners are
each liable for the entire d eb ts of th e partnership.
P o w ers of A tto r n e y . May be w ritten or oral. May be either
general for all affairs or special for one affair only. One conceived in
general term s confers only power of adm inistration; to sell mortgage
or do an y other a ct of ownership, th e power m ust be express and
special.
P ro b a te L aw . There is no special probate court. D istrict courts
are vested w ith probate Jurisdiction. Successions are opened upon
petition of Interested persons in th e parish where th e deceased resided,
if he had a domicile or fixed place of residence in th e state; in the
parish where he left his landed property, if he had neither domicile
nor place of residence in th e state; or In the parish in which It appears
from th e inventory tha* his principal property was situated, if he
left property in several parishes: in th e parish where he died, if he
h ad no certain domicile nor any fixed property. If presum ptive heir
does n ot begin legal proceedings to settle succession within ten days
after death of “ de cujus,” creditors m ay dem and th a t he sta te whether
he accepts or rejects succession, or if no heirs appear, th a t a curator
ad hoc be appointed to settle th e estate. The judge appoints an
adm inistrator when deceased leaves no will. A dm inistrators must
render annual accounts, and are allowed 2 1-2 per cent on th e inven­
to ry as commissions. A ttorneys a t law are appointed to represent
absent heirs. P roperties acquired during m arriage are presumed to
be com m unity property, and surviving spouse is owner of one-half.
W hen either husband or wife dies, leaving no ascendants or descend­
ants, and w ithout having disposed by will of his or her share in the
com m unity, the survivor holds such share in usufruct during his or
her natural life. (See Successions.)
P r o te s t. (See Negotiable Instrum ents.)
S e p a ra tio n f ro m B ed a n d B o a rd . May be claimed reciprocally
for: 1. A dultery. 2. W hen spouse condemned to Infamous pun­
ishm ent. 3. H abitual intem perance, excesses, cruel treatm ent, or
outrages, when such renders living together insupportable. 4. Public
defam ation of one spouse by the other. 5. A bandonm ent. 6.
A ttem pt of one spouse against life of other. 7. W hen one spouse
charged w ith infamous offense actually flees from justice.
Judgm ent of Divorce. “ A vinculo m atrim onii” Can be obtained
im m ediately for first two causes. F or other causes it is necessary
first to obtain judgm ent of separation “ a m ensa et thoro.” After
judgm ent of separation from bed and board, if there has been .no
reconciliation, p a rty in whose favor judgm ent is rendered can obtain
final divorce one year after finality of judgm ent of separation. Party.

B A N K IN G A N D

C O M M E R C IA L

aeainst whom judgm ent is rendered m ust w ait two years. When
marriage is celebrated outside of sta te parties cannot obtain divorce in
state on grounds occurring outside of state.
T ax es. Taxes on real estate can n ot be enforced u n til th e expira­
tion of th e y ear for which th ey are levied and after legal notices to
delinauents an d advertisem ent. Lands sold for taxes are redeemable
within one year, by th e owner, his agent, or heirs, or any creditor,
on paym ent of th e purchase money, w ith 20 per cent Interest and
costs, an d all subsequent taxes paid. L ands sold for taxes due prior
to 1880 are n o t redeemable. S tate taxes are 8 mills on the dollar,
and parish taxes n o t exceeding ten mills; city of New Orleans tax
22 mills on th e dollar. Delinquent sta te taxes bear interest a t 2 per
cent a m onth, city taxes, 10 per cent a year.
W ills. There are four different kinds of wills, viz.: The olo­
graphic, nuncupative by public act, nuncupative by private act, and
mystic (or sealed) will. The olographic will m ust be wholly w ritten,
dated, and signed b y th e testator, and m ay be m ade within or with­
out th e S tate. N uncupative will by public act as w ritten by a
notary in presence of three witnesses, over the age of 16 years com­
plete, n o t Insane, deaf, dum b or blind, residing in th e place where
will is executed, or five witnesses n ot residents of the place, a t the
dictation of the testato r. N uncupative will by private a ct and m ystic
wills are subject to m any form alities which m ay be best obtained by
reference to Civil Code A rts. 1581-1587 both inclusive. All persons
of sound m ind over sixteen years of age m ay dispose of their property
by will. Wills executed w ithout th e sta te given force and effect
provided sam e be in w riting and subscribed by testato r and follows
form of place where executed, or of testa to r s domicile. (See act 176
of 1912.)
j
S Y N O P S IS O F

T H E L A W S OF M AINE
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S
Revised by S y dney B. L a b b a b e e ,
A ttorney a t Law, P ortland.
(See Card in A ttorneys’ List.)
A c k n o w le d g m e n ts . (See Deeds.)
A c tio n s . A t law begun by w rit, under common law practice, but
containing declaration. Suits in equity are begun by bill of com­
plaint, filed w ith clerk of court and subpoena issued by him, or m ay
be inserted in w rit of attach m en t and served by copy of bill and writ.
On m otion non-resident plaintiffs required to give security for costs.
A d m in is tr a tio n o f E s ta te . (See E states of Deceased Persons.)
A ffid a v its. Affidavits m ay be m ade before a notary public or
Justice of th e peace. In some court m atters authority of m agistrate
m ust be proved by certificate of clerk of a court of record.
A llen s. Allens m ay hold and convey real estate and personal
property. Wills of aliens m ay be proved and allowed In this S tate.
Widow of a citizen of U nited States who was an alien when she married
him has right of descent in his estate (but see Married Women).
A r b itr a tio n . Judge of probate court m ay authorize executors or
adm inistrators to ad ju st by arbitration claims for or against the
estates represented by them . All controversies which m ay be the
subject of personal action m ay be subm itted, by the parties, to referees
for arbitratio n . M ajority of referees m ay m ake report to Supreme
or Superior Courts.
A rre s t. (See Executions.) I n actions ex delicto, on mesne proc­
ess and execution, as of course w ithout affidavit or order; in actions
ex contractu, on mesne process, upon affidavit of th e creditor, his
agent, or attorney, th a t he has reason to believe and does believe
th a t th e debtor Is abo u t to depart and reside beyond th e lim its of
the S tate and carry w ith him m eans of his own more th a n are neces­
sary for his im m ediate support, and th a t a t least $10 Is due on the
claim ; on execution, only after supplem entary proceedingsand fraud
proven, b u t if contract Judgm ent or action existing March 17, 1887,
arrest on execution. Debtors arrested on mesne process or execution
m ay disclose, give up property n ot exem pt from attachm ent and be
discharged from arrest, or m ay give bond and disclose according to its
term s. No arrest in actions ex contractu for less th a n $10, and none
of m arried women in civil actions.
A s s ig n m e n ts . Common law assignm ents for th e benefit of
creditors m ay be m ade, and after four m onths will be good against
bankruptcy proceedings. Assignments of wages m ust be recorded
in tow n clerk's office.
A t ta c h m e n t. All property n ot exem pt attachable on mesne proc­
ess as of course w ithout affidavit; security for costs by indorser of
writ only if creditor is non-resident; lien by attachm ents in the order
In which th ey are m ade continue for th irty days after judgm ent
(extended where execution is delayed, appeal from taxation of costs
is taken, or decision of law court certified down in vacation), within
which tim e levy m ay be m ade. Personal property m ay be appraised
an d sold on mesne process to avoid expense, depreciation or loss,
on request of either p arty and proceeds held by officer in lieu of tne
property; foreign attach m ent (garnishm ent), known as trustee process,
attacnes property by or debt due from trustee unless; 1. Due on
negotiable paper. 2. Money collected on process by officer. 3.
In hands of public officer. 4. Due on contingency. 5. Trustee
liable to execution on same. 6. Twéhty dollars wages, for personal
labor of th e debtor, wife or m inor child within one m onth, and $10
exem pt In all cases. 7. In certain cases money due on life and
accident policies, and from fraternal beneficiary associations. (See
Creditors’ Bills.)
B a n k s . Savings b ank business and discount banking perm itted
only under special charter, and under sta te supervision. T rust com­
panies m ay be organized under general statu tes on obtaining approval
of sta te bank exam iner. General sta tu tes relating to discount bank­
ing repealed by Laws 1903, c. 166. Foreign banking associations hav­
ing a branch here p ay a ta x of three-fourths of one per cent per annum
on th e am ount of business done in this S tate. Savings banks have
no capital, an d do business only for the benefit of depositors, under
s ta tu te regulations restricting investm ents, requiring reports under
oath an d exam inations b y bank exam iner. Must n ot pay over 2 1-2
per cent dividend sem i-annually. Franchise ta x is ffve-eightos per
cent, regulated to favor hom e investm ents. Use ^J^be^vcrds bank,
■“ tru st com pany,” and sim ilar words in designating a business, for­
bidden, except by corporations organized as above or under laws o»
| U nited States. Corporations, if licensed by b a n k commissioner, m ay
receive savings deposits from their employees. Dealers in securities
m ust be registered w ith bank commissioner and are subject to certain
regulations.


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Federal Reserve Bank of St. Louis

L A W S — M A IN E

1591

C o lla te ra ls. (See Mortgages.)
C o n d itio n a l S ales, C o n s ig n m e n ts . No agreem ent th a t personal
property bargained and delivered to another shall rem ain th e property
of th e seller u ntil paid for, is valid unless in w riting and signed by the
person to be bound. Such agreem ent, in w hatever form It m ay be.
Is n ot valid except as between original parties, unless recorded in the
office of the clerk of th e tow n In which the purchaser resides a t the
tim e of the purchase. This does n ot apply to goods consigned for
C o n v e y a n c e s. (See Deeds.)
,
C o rp o ra tio n s. Three or more persons m ay form a corporation to
carry on any lawful business excepting banking, insurance, construct­
ing and operating railroads, savings banks, tru s t companies, or corporations Intended to derive profits from th e loan or use of money,
and safe deposit companies, b u t corporations m ay be form ed under
the general law for the construction and operation of railroads outside
th e S tate of Maine. Corporations for other purposes, excepting for
municipal purposes, and where the objects of the corporation can n o t
be attained w ithout special acts, are also formed under generallaw s.
Organization becomes void unless corporation begins business wxtmn
two years. Corporation m ay capitalize to a n unlim ited am ount and
m ay increase or decrease the am ount of their capital or th e p ar value
of the shares. No portion of capital Is required to be paid in; stock
m ay be Issued for property or for services and in absence of fraud
th e judgm ent of th e directors as to th e value of such property or
services Is conclusive, the stock thereupon becoming fully p aid .
Only original subscribers and takers of stock are liable on same to
ex ten t of unpaid par value and then only for debts contracted during
their ownership of stock, and action to enforce such liability m ust do
commenced within two years and can be m aintained only by a judg­
m ent creditor of the corporation who shall have begun proceedings
to obtain such judgm ent against the corporation during th e owner­
ship of such stock or w ithin one year after its transfer by such stock­
holder is recorded on the corporation books. Directors m ust be
stockholders or members of another corporation which is a stockholder.
If corporation fails for six m onths to elect directors, court m ay appoint.
Corporations m ust pay to the S tate upon organization, a fee as fol­
lows: W here the capital stock is $ 10 ,0 0 0 or less, $10; exceeding
$10,000 and up through $500,000, $50; above $500,000, $10 for every
$100,000 of capital. O ther fees for organization are: attorneygeneral’s fee $5, register of deeds $5, secretary of sta te $5. The
annual franchise ta x is as follows: $5 provided authorized ^ p l t a l
does n ot exceed $50,000; exceeding $50,000 and up through $200,000,
$10: exceeding $200,000 and up through $500,000, $50; exceeding
$500,000 and up through $1,000,000, $75; and th e fu rth er sum of
$50 per $1,000,000 or any p a rt thereof in excess of $1,000,000. Cor­
porations which have suspended business tem porarily andl h ave been
excused from filing returns of am ount of capital stock, etc.,
liable for franchise tax . Meetings of stockholders m ust be held w ithin
the S tate. Clerk m ust be resident and keep stockholders records in
the State. His records are open to inspection by stockholders b u t
n ot by mere creditors. W ith th e exception of banking corporations
no public reports are required except one to th e secretary of state
showing names and residences of officers and am ount of capital stocH.
Delivery of certificate of stock to bona fide purchaser or pledgee for
value together with w ritten transfer of same or w ritten power of
attorney to sell, assign, and transfer same, signed by owner of cer­
tificate, transfers title against all parties. Foreign corporations have
practically same rights as domestic, b u t are required to file copy of
charter w ith secretary of state, also a copy of th e by-laws, and are
also required under severe penalties to file certificate showing among
other things the names of officers, am ount of capital stock authorized,
am ount issued and am ount paid in; also m ust file certificate showing
any change in above particulars. Such corporations m ust also appoint
a resident of Maine, having an office or a place of business in the
state, to be its attorney on whom process m ay be served in any legal
proceeding. Corporations m ay dispose of their franchises on m ajority
vote of th e stockholders; m ay sue and be sued, and have generally
the powers of individuals. Public service corporations are subject
to a Public Utilities Commission.
C o u rts. Term s and Civil Jurisdiction. Supreme judicial court:
Two or three term s a year in each county; unlim ited jurisdiction except
as specified below; full jurisdiction in equity; appellate Jurisdiction
en banc on questions of law, from tria l term s and superior courts.
Superior courts:
In Cumberland
County
except
equity,
real actions, extraordinary legal remedies and some others; exclusive
jurisdiction w ith exceptions to $500 and in divorce, concurrent juris­
diction above $500; sits first T uesday of every m onth, except June,
July, and August. Kennebec C ounty; exclusive jurisdiction, with
exceptions to $500; concurrent in habeas corpus and divorce; sits
second Tuesday Of January and first Tuesday of April and September
a t Augusta; second Tuesday of June and Novem ber a t W aterville.
C ourts of probate: Usual jurisdiction concurrent in equity of probate
m atters. M unicipal courts and trial justices: Exclusive jurisdiction
of forcible entry and detainer and in other cases up to lim ited am ount;
appeals to superior court where established, and elsewhere to supreme
judicial court.
C re d ito rs’ B ills. Bill in equity m ay be m aintained to reach
property of debtor which cannot be reached by process a t law, and
U n ot exem pt from attachm ent; also property conveyed in fraud of
creditors and property secreted so th a t it is n o t repleviable.
D ay s of G race. (See Negotiable Instrum ents.)
D eeds. Any owner of real estate having right of en try m ay con­
vey it by deed. No estate greater th a n tenancy-at-w ill can be created
except in writing. Deeds m ust be acknowledged by a grantor or
one of them or by atto rn ey in fact, executing th e same, before a justice
of the peace, notary public having a seal, or woman qualified to tak e
acknowledgments; outside th e S tate, and in th e U nited States, before
a clerk of a court of record having a seal, n o tary public, or commis­
sioner of deeds for this State, and in a foreign country before a n o tary
public, or a consul or m inister of the U nited States, b u t if m agistrate
acting outside of S tate has no official seal, his a u th o rity and th e
genuineness of his signature m ust be authenticated by th e clerk of
a court of record in county where he resides. Unacknowledged deeds
cannot be recorded. No special form of acknowledgm ent required.
Deeds m ust be recorded to be valid against parties w ithout notice of
th e conveyance. Deeds m ust be under seal, b u t witness is n ot
required for validity although usual to have one. Leases for more
th an seven years m ust be recorded. T rusts concerning real estate
can be created only in writing, except those arising by im plication
of law.
D e p o s itio n s . Depositions m ay be taken b y disinterested justice
of the peace or notary public; m ay be tak en when deponent is unable
through age, infirm ity, or sickness to atten d a t place of tria l; when
deponent resides o ut of, or is absent from th e S tate; when deponent
resides in town other th a n th a t in Which trial is to be held, etc. Depo­
sitions so taken m ay be used In all civil suits or causes, petitions for
partition of land, libels for divorce, prosecutions for th e m aintenance
of «BUdron, petitions for opinions in tria l before court? of arbitrators,
referees and county commissioners, and in cases of contested senatorial
or representative elections. Depositions or affidavits m ay also be
taken in applications for pensions, bounty, or arrears of p ay under
any law of th e U nited States. Courts m ay issue commissions to
take depositions o ut of th e S tate, or th ey m ay be tak en o u t b t S tate
by a Justice, notary, or other person empowered, b u t in th e la tte r
case it is w ithin th e discretion of th e courts to ad m it or reject then!.

1592

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

D e s c e n t a n d D is tr ib u tio n of P ro p e rty . (See E states of De: ceased Persons.)
D o w er. Abolished by laws ol 1895, chap. 157, taking effect as
to persons n ot then m arried, May 1, 1895; as to others, Ja n . 1, 1897
W ile or husband m ay b ar th e right by Inheritance to one-third or
one-hall, as th e case m ay be, of realty by Joining In the other’s deed,
o r by sole deed, or by ante-nuptial settlem ent, or by Jointure. E ither
refusing to. join in other's conveyance (or if incapacitated w ith no
guardian m this state, other being a non-resident) m ay be barred of
inheritance .upon application to suprem e judicial court and decree
after hearing. (See E states of Deceased Persons.)
E s ta te s o f D e c e a s e d P e rso n s . E ighteen m onths after notice of
appointm ent allowed creditors to present claims and suit m ust be
begun and service of process m ade w ithin tw enty m onths after such
notice of appointm ent. Allowance to widow and minor children
mad© by co urt'from ©state. Non-resident executor or adm inistrator
m ust appoint attorney. Time of dem and or notice extended for absent
creditor if further assets, b ut prior paym ents not disturbed thereby.
N o adm inistration granted after tw enty years. The real and personal
estate of a persqn deceased intestate (excepting wild lands conveyed by
Jum) being subject to th e paym ent of debts descends according to the
following rules: 1. I t he leaves a widow and issue, one-third to
th e widow. If no issue, one-half to the widow. And If no kindred,
th e whole to the widow. And to th e widower shall descend the same
shares in his wife’s real and personal estate. There shall likewise
descend to the widow, or widower, the same share in all such real
estate of which the deceased was seized during coverture, and which
has n ot been barred, or released, as herein provided. In any event,
one-third shall descend to the widow or widower free from the pay­
m ents of debts. 2. The rem ainder of which he dies seized, and if
no widower, or widow, the whole, together with all wild lands, shall
descend in equal shares to his children, and to the lawful issue of a
deceased child by right of representation. If no child Is living a t
th e tim e of his death, to all his lineal descendants; equally, if all are
th e same degree of kindred; if not, according to the right of repre­
sentation. 3. If no such Issue, It descends to his father and m other
In equal shares. 4. If no such issue, or father, it descends one-half
to his m other. I f no such issue or m other, it descends one-half to
his father. In either case, th e rem ainder, or if no such issue, father
or m other, th e whole descends In equal shares to his brothers and
sisters, and when a brother or sister has died, to his or her children
o r grandchildren by right of representation. 5. If no such issue,
father, b rother or sister, it descends to his m other. If no such Issue,
m other, b rother or sister, It descends to his father. In either case,
to th e exclusion of the issue of deceased brothers and sisters. 6. If
no such Issue, father, m other, brother or sister, it descends to his next
of kin In equal degree; when they claim through different ancestors,
to those claiming through a nearer ancestor, in preference to those
claiming through an ancestor more rem ote. 7. W hen a m inor dies
unm arried, leaving property Inherited from either of his parents. It
descends to th e other children of the same parent, and th e issue of
those deceased; In equal shares if all are of the sam e degree of kindred;
otherwise, according to the right of representation. 8. If the
Intestate leaves no widower, widow or kindred, it escheats to the
S tate. An illegitim ate child is an heir of its parents who interm arry ;
also of its m other, also of Its father, who adopts It or acknowledges
it before a m agistrate; and in any case where the child is treated as
an heir it inherits from the lineal and collateral kindred of th e parent,
and th ey from it. (See Wills.)
E x e c u tio n s issue after tw enty-four hours from rendition of Judg­
m ent, returnable in three m onths, renewable w ithin ten years after.
No stay except by order of court for cause and one y ear against absent
defendants unless bond filed; levied on real estate by appraisal and
extent, also on real estate and Interests in the same and franchises
and personal property by sale: money and, by consent, circulating
notes applied directly. Real estate sold on execution m ay be re­
deemed in one year. A ttaching creditor m ay w ithin forty-eight
hours after notice redeem personal property of debtor which Is subject
to m ortgage pledge, or lien; m ay also redeem real estate subject to
m ortgage or other lien, Special provisions for redem ption of certain
other special classes of property, such as buildings on leased lands,
franchises, etc.
E x e m p tio n s fro m A t t a c h m e n t a n d E x e c u tio n . Homesteads,
n o t exceeding in value $500, when duly registered; debtor’s apparel,
necessary furniture for fam ily, n o t exceeding in value $100; bed and
bedding for each two persons; fam ily portraits, bibles, school books In use; S tate sta tu tes; library, $150; regular pew; cook stove and
iron warming stoves; charcoal, twelve cords of wood, fives tons an­
th racite coal, fifty bushels bitum inous coal, $10 w orth of lumber,
wood, or bark; produce of farm s till harvested; barrel of flour, th irty
bushels of com and grain, potatoes for family, one-half acre of flax
an d m anufactures therefrom for family; tools of trade, and m aterials
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; dom estic fowl,
$50; two swine, one cow and one heifer. If no oxen, horse or mule,
two cows; ten sneep, tneir wool, their lam bs until one year old; hay
to keep them and cattle; plow, cart, tru ck or express wagon, harrow,
yoke with bows, ring and staple, two chains, mowing m achine; fish­
ing bo at of two tons; debtor m ay elect if he has more th an is exem pt.
Life and accident policies are exem pt from creditors, except any
excess of $150 per year prem ium paid w ithin two years, except suits
for necessaries. (See A ttachm ent.)
F o re ig n J u d g m e n t. Action of debt lies on a foreign judgm ent
and record of it is prim a facie evidence of indebtedness. Is conclusive
except for fraud when given by court having jurisdiction of parties
and subject m atter.
F r a u d . Usual common law rules as to w hat constitutes fraud,
fraudulent representations, etc.; also sta tu to ry penalties for fraud,
cheats, etc. Court of equity has power to afford relief. S tatutory
provisions to prevent sale in bulk of p a rt or whole of stock of mer­
chandise in fraud of creditors.
F r a u d s a n d P e r ju rie s . No action shall be m aintained upon any
co n tract to charge an executor or adm inistrator upon any
special promise to answer dam ages o ut of his own estate; nor to
charge an y person upon any special promise to answer for th e debt,
default, o r misdoings of another; nor to charge an y person upon an
agreem ent m ade in consideration of m arriage nor to charge any per­
son upon a n y contract for th e sale of lands, tenem ents, or heredita­
m ents. or of any interest therein; nor to charge any person upon any
agreem ent th a t is n o t to be perform ed w ithin one year from the
m aking thereof; nor to charge an y person upon any contract to pay
a d eb t after discharge therefrom under b ankrupt laws of th e United
S tates or assignm ent or insolvent laws of this S tate; unless the promise,
contract, o r agreem ent or,som e m em orandum thereof is in writing
and slgned by the p a rty to be charged, or his agent. No action shall
be m aintained on a m inor’s contract unless ratified by him in writing
after becoming tw enty-one years of age, except the contract be for
necessaries or real estate where he has received title and obtained
benefit. No contract for sale of goods, etc., of $30 or more in value
is valid unless purchaser accepts or receives a portion of th e goods
o r gives som ething to bind th e bargain, or in p a rt paym ent thereof,
o r . some m em orandum is m ade and signed by p a rty charged or his
agent. Contracts whereby one becomes agent for sale of lands become
void in one year unless tim e for term ination definitely stated.
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G a r n is h m e n t. (See A ttachm ent.)
.
anld W ife. Each m ay hold and deal with proDertv
Individually, subject to right of descent In real estate. (See E sta te
of Deceased Persons.) H usband n ot liable for debts of wife con.
tracted before m arriage, nor afterw ard in her own name, nor for w
torts. E quity C o u rt has special jurisdiction of disputes between
husband and wife relating to property. After petition to and decree
by probate court either m ay convey real property as if sole, and other
is barred of all right by descent where deserted w ithout ju st can««
or ii actually living ap art for ju st cause, and desertion or living anart
has continued one year.
ayari
I n t e r e s t . Six per cent or any other rate agreed upon In writingjudgm ents, same rate; accounts and debts h o t on tim e bear interest
from dem and. Special rate in tim e notes does n ot continue after
m aturity, unless so provided; no r after judgm ent In any case- na
usury laws. On loans for less th an $200, secured by mortgage or
pledge of personal property, the rate shall not exceed 3 per cent Der
m onth for first three m onths, and 15 per cent per annum thereafter
Loans negotiated in this sta te by agent of non-resident borrow»
^ t h ^(¡ent to evade usury laws of sta te where borrower resides are
voidable.
aro
J u d g m e n ts . A t law; by general order a t end of term on all cases
where verdict or default, unless stayed by proceedings for new trial
or continued for judgm ent by plaintiff; in equity, only by decree
signed by justice. No lien except by virtue of attachm en t on mesne
process (q. v.) and where specially provided by law.
, . U e ” s-. (Voluminous S tatu te Provisions, for Mechanics. Material.
etc1)*
&nd Boarding-House Keepers» Stable Keepers* Agister,
u
A ctio n s- Six years: debt on unsealed contract or
liability (except Judgm ents); actions upon Judgm ents out of State of
court n ot of record; for arrears of rent; of account, assumpsit, or
case on contraot or liability express or im plied; w aste; trespass qu
cl. andId. 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 m onths: stolen bonds and coupons, except
by owner. Tw enty years: witnessed notes, bank bills, specialities
real action, other judgm ent and all other personal actions. Suit
begun when w rit was m ade. Incapacity of plaintiff, death of either
p arty before or within th irty days after expiration of tim e, fraudu­
lent concealm ent of action, absence from S tate when cause accrues
or residence o ut of the S tate and absence afterw ards, extends time
Actions barred where both parties lived are b a n e d here. New
promise m ust be in w riting or p a rt paym ent m ust be m ade, to extend
“ “ e- Against executors and adm inistrators, tw enty m onths after
pung of affidavit of notice given of appointm ent of executor or adminlstrator, unless further assets or claim n ot m atured. Against heirs
or devisees, one year after claim accrued: rem edy in equity, if not
prosecuted within tim e lim ited and if w ithout culpable neglect.
L im ite d P a r tn e r s h ip . May consist of one or more general partners and one or more special. ’Special shall contribute specific amount
of capital or property a t cash value, and be not liable for debts
beyond th a t am ount. General partners m ust transact th e business.
M a rrie d W o m e n have sam e rights and liabilities as to property
contracts and all suits as m en. 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 m ay sue an d be sued as if sole. May not be
partner of husband and not liable for fam ily expense except by express
promise. (See Arrest, also Dower, also E states of Deceased Persons,
also H usband and Wife.)
M o rtg a g e s . Of real estate: executed and acknowledged as deeds
an a m ust be recorded as to third parties; convey fee with condition
of defeasance. Foreclosed w ithout possession by serving o r adverusing notice, or by possession obtained peaceably, or by consent, or
by suit. Redem ption in one year from notice or possession; power
ol sale m ortgages n ot authorized by sta tu te and n ot m uch used,
suprem e court m ay authorize a m ortgage by a person in possession
or an estate subject to a contingent rem ainder, executory devise, or
power of appointm ent, and stich m ortgage is binding on all parties.
C hattel mortgages unless and until possession taken and retained by
m ortgagee to be good against th ird parties m ust be recorded in town
clerk s office where m ortgagor resides when m ortgage is given; or, if
any of mortgagees are non-residents, then in registry of deeds in
county where mortgagee resides, when m ortgage is given. M ort­
gage on household furniture m ust sta te am ount of loan, interest
rate, an a cost of procuring loan. Agreements, whether in form of
n
j i?8®* conditional sale, etc., or otherwise, th a t chattels bargained
deliver«! shall rem ain property of seller till paid for, m ust be in
writing and recorded as chattel mortgages; such mortgages and notes
foreclosed by sixty days’ notice to m ortgagor or assignee of record,
or, if out or State, by publication; redem ption in sixty days. Col­
laterals pledged on notes, etc., or for the perform ance of anything,
after failure to pay or perform by th e pledgor, m ay be sold by the
pledgee, he first giving w ritten notice to the pledgor of th e proposed
sale, or if his residence is unknown, by publication of notice once a
week for three successive weeks in a newspaper in th e city or town
where th e pledgee resides, recording said notice and affidavit of service
of sam e in th e clerk’s office of city or tow n where th e pledgee resides,
and after the expiration of the sixty days from th e tim e of said recordN e g o tia b le I n s t r u m e n t s . Days of grace abolished except as to
sight drafts. Falling due on Sunday or bank holiday payable and
presentable for paym ent on secular or business day n ex t succeeding,
if holiday falls on Sunday then following M onday is deemed bank
holiday. On notes payable a t fixed place on dem and a t o r after a
tim e certain, no recovery unless dem and proved there before suits
usual dem and and notice to charge indorser; notarial protest proves
it; b u t one indorsing note a t inception before payee does is a maker.
Waiver of dem and and notice, acceptance of bill, draft, or order must
be In w riting and signed. Recovery from indorser w ithout suing
maker. R ate of damages on protested bills of $100 or more payable
in this country, l to 9 per cent according to place. Negotiable paper
presumed to be taken in paym ent of debt or liability for which it is
given, unless creditor would th u s lose security he otherwise would
have had. Legal holidays are Ja n u ary 1; F ebruary 22; April 19;
May 30; Ju ly 4; first Monday In Septem ber; Thanksgiving; Christmas,
and A rbor Day. If note reads ’T promise to p ay ” all signers are
jointly and severally liable.
P a r tn e r s h ip . Personal property of partnership, or Interest of
partner therein, exem pt from attach m en t on ntesne process, o r seizure
on execution for any Individual liability or such partn er; b u t Is statu­
tory provision for reaching sam e after judgm ent. P artners in mercan­
tile enterprise m ust file sworn certificate w ith city or town clerk
where busmess to be carried on, showing nam es and residences of
partners, nature of business and partnership nam e. (See' Limited
Partnership.)

Powers of Attorney. Usual common law rules,
Probate Law. (See Estates of Deceased Persons.)
Protest. (See Negotiable Instruments.)

B A N K IN G A N D

C O M M E R C IA L L A W S — M A R Y L A N D

R e p le v in . Goods or chattels wrongfully taken or detained m ay
be replevied by owner or p arty entitled to possession. Replevin bond
m ust be double th e value of property replevied. If dismissed with­
out trial, suit m ay be brought on the bond, in which suit title m ay be
shown to m itigate damages.
T ax es m ay be collected by arrest, distress, or suit. On real estate
they are a lien: proceedings to enforce by sale begin upon non-pay­
m ent for nine m onths; non-resident owners have one year from sale
to redeem by paying tax, costs, and 10 per cent Interest from day of
sale- residents, two years with 10 per cent Interest from day of sale
on whole sum of ta x and costs. Land on which taxes are unpaid,
sold on first Monday in F ebruary in year succeeding th e year in which
tax was assessed: sale is ot sm allest fractional p a rt of Interest to one
who will pay taxes. Interest, and costs therefor. S tate ta x assessed
by board of state assessors on gross receipts of railroads and express
companies, and telegraph and telephone lines, collected by suit.
Corporations, other th an 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 n o t exceed $200,000.00; of $50.00, if capital
does n ot exceed $500,000.00; of $75.00, if capital does not exceed
$1.000.000.00; and th e fu rther sum of $50.00 for each $1,000,000.00,
or fraction thereof. In excess of $1,000.000.00. Foreign corporations
nay annual license fee of $10. Inheritance ta x ranging from 1 to 7
ner cent, according to degree of relationship and am ount of bequest.
$500 exem pt In all cases, and $10,000 exem pt in case of certain near
relatives. Special exceptions and exem ptions from assessment, and
special provisions for taxing personal property situated here b ut
owned out of tl>e S tate. Real estate mortgages- exem pt. (See
Banks.)
W ages. Weekly paym ent required in m ost industries. (See
Assignments, A ttachm ent.) ■
W a re h o u s e R e c e ip ts. H older deemed true owner so far as to
give validity to contract for sale of m erchandise covered, or to protect
one acting on faith of such ownership; b ut one taking from agent as
security for antecedent debt gets no greater right th an agent. Title
to property passed by endorsem ent, b u t not in blank, to purchaser
or pledgee In good faith. P roperty in warehouse m ay be attached
as th a t of person nam ed In receipt, or of last endorsee shown by books
of warehouseman. Common law rules prevail generally.
W ills. Wills m ust be in w riting signed by the testator, or a t his
request by some person In his presence, and subscribed in his presence
by three witnesses in presence of each other, m ay be m ade by any
person of age and of sound m ind, and m ay dispose of all property.
Wills executed in another S tate or country according to laws therpof.
m ay be proved and allowed In this S tate in the county where the
testato r had h it residence a t tim e of decease; if proved w ithout this
S tate (at his domicile), m ay be allowed in any county here where he
has property. Widow or widower m ay within six m onths waive
provision in will of deceased husband or wife and claim same share
in personal property as would have had in case deceased died intestate.
(But see Husband and Wife.)
N uncupative'w ill m ust be reduced to w riting within six days, or
proved by testim ony within six m onths, from tim e words spoken.
No letters In such till fourteen days after decease of testator. Not
effectual to dispose of more th an $100.00 w orth of property unless
proved by three witnesses who acted a t testa to r s request.
S Y N O P S IS O F

T H E L A W S OF M ARYLAND
R ELA TIN G TO
B A N K I N G A N D C O M M E R C IA L U S A G E S
Revised by T. H oward E m b b r t , A ttorney a t Law, Baltimore.
(See Card in A ttorneys’ List.)
I n g e n e ra l. Bagby’s A nnotated Code <1911) and Supplemen­
tary Volume (1914) embrace the Public General Laws i ^ ar/ 1faiV
including those of th e 1914 session. By statute, the Code of 1911
has been m ade evidence: special reference to statutes m the follow­
ing is therefore unnecessary.
A c k n o w le d g m e n ts of conveyances of any interest In real or lease­
hold property for above seven years, m ay be m ade w ithin the ¿»tate,
and In th e county or city in which the land, or any P art of lt Uw,
before a n o tary public, justice of the peace, a Judge of the orphans
court, a judge of th e circuit court of any county, gr a judge of the
supreme bench of Baltim ore city. If w ithin the S tate, b ut out oi
the county in which th e estate conveyed lies, they m ay be made
before a judge of an y circuit court for the circun where the grantor
m ay be, or before an y judge of the orphans court for the city or
county in which th e grantor m ay be, notary public, or a justice of
th e peace; th e official character of the justice m ust be certified by
the clerk of th e circuit court of the county, or superior court of Balti­
more city, under his official seal, or an yJudge of the supreme bench
of Baltim ore city, if grantor be in Baltim ore city. If w ithout the
S tate, th ey m ay be m ade before a notary public, a judge of any
court of th e United States, or of any state
territory court paving
a seal, or a commissioner ot deeds for this S tate. The seal of the
officer or court to be affixed to the certificate of
in all cases. If acknowledged' w ithout the United States, the acknowl­
edgm ent m ay be m ade before any m inister, consul g en ^ ah vlce or
oonsular agent or deputy, or a notary public, or a commissioner to
take acknowledgments for State of M aryland. No
ation of a m arried woman is required. Defective acknowledgments
cured. (See Conveyances.)
A c tio n s . The forms of actions, which still savor of
c®innum
law are now very simple, any plain statem ent of
J ^ ^ ^ u tin g
a good cause of action being sufficient. Amendment is allowed a t
L v t i i ^ before v erdict
E quitable defenses are now allowed
to tie m ade In a court of law,
equity courts having different and distinct
judgm ent Acts are in force m Baltim ore C ity and in m any of the
Counties. (See Suits.)
A d m in is tr a tio n o f E s ta te s . The prphans’ court of the counties
and th e orphans' court of Baltim ore . c i ^ f c th e courts of Probate
In cases where decedent left a will, letters are granted to exec
and executrix nam ed id th e will. In granting letters of adm inistra
tion. where decedent
i Trt nrfriAnr /**• child or children! 2. Grandchiici, 3» r a in e r,
Brothere an d Maters: b. Mother: 6. N ext oi

f e iii M

u H

i ■S»e‘rSipi?rgSaio,eJ'iS51§

companies where authorized by their charter to a ct as sole surety.
When testa to r requests in wifi, th a t executor ^ e x c u sed Horn giving
bond, court only requires noffilnal bond for a m o u n t sufficient to pay
estim ated debts. Six m onths notice to creditors m ust be given oy

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1593

publication before estate is distributed. Personal property m ust be
appraised, accounted for and distributed through the orphans court
of the county or city in which decedent resided. All sales m ust
be authorized and ratified by th e orphans’ court. By Act of 1896,
Ch. 246, above provisions were m ade applicable to
estates
of persons absent and unheard of for above seven years.
A“ *®
has been held unconstitutional. Re-enacted w ith am endm ents.
(Acts 1908, Ch. 125.) This a c t constitutional by decision of Court
of Appeals in case of Savings Bank vs. Weeks 110 Md. 78.
A ffid av its.
(See Acknowledgments.) No p articular form neces­
sary, b ut whoever can take an acknowledgment can tak e an affidavit.
Affidavits always required in a m ortgage as to th e bona rules of
m ortgage consideration; and th e paym ent of tax on annual interest
in certain counties. (See Mortgages.)
A lien s. Allens, n ot enemies, m ay take and hold lands, tenem ents,
and hereditam ents acquired by purchase, or to which th ey would.
If citizens, be entitled by descent, and m ay sell, devise, or dispose
of the same or transm it th e same to th eir heirs as fully and effectuauy
and in the same m anner as If by b irth th ey were citizens of this S tate.
A r b itra tio n . Disputes between parties m ay be conducted by
any judge or justice of the peace m utually agreed upon. Special
agreem ents for arbitration of such disputes to be valid. P arties m ay
be represented by an attorney* and aw ard of arb itra to r or arbitrators
to be a judgm ent, and court m ay give judgm ent and issue execution
on the award. Act 1904. Ch. 671. provides a m eans for the settlem ent
of disputes between employers and employees by m ediation or volun­
ta ry arbitration.
A rre s t. No arrest for debts in this S tate. In crim inal cases a
sentence m ay be Rassed, imposing a sum of money as a fine, and
then in lieu of paym ent by party, of fine Imposed, he is liable to
im prisonm ent.
A tta c h m e n ts for debt (See A ct 1890, Chap. 549), or for unliqui­
dated damages, either in contract or to rt, can be obtained in att
cases when the defendant is a non-resident or has absconded, affldavw
being first m ade by the plaintiff to the correctness of his olaixn and
the fact th a t the defendant is a non-resident or has absconded. They
m ay be also obtained in connection w ith an original process when
the creditor or some one in his behalf shall give bond in double the
am ount of the debt, w ith sureties to be approved by the clerk, and
m ake affidavit before the clerk of th e court where the su it is brought
th a t the defendant is bona fide Indebted to th e plaintiff in th e sum
claimed, and th a t the plaintiff knows or has good reason to believe
th a t the debtor has absconded ©r is about to abscond from the S tate,
or th a t the defendant has assigned, disposed of. or concealed, or
is about to assign, dispose of, or conceal, his property, or some portion
thereof, with in ten t to defraud his creditors, or th a t th e defendant
fraudulently contracted th e debt or incurred the obligation; or th a t
the defendant has removed or is about to remove his property, or
some portion thereof, out of this State, w ith in ten t to defraud creditors
and the attachm ent m ay be m aintained, although th e debt or oblig&r
tion upon which th e action is brought m ay n ot have m atured, b ut
th e d a te of th e m atu rity of th e debt or obligation m ust be set forth
tn the affidavit (Act 1894, Ch. 648). A claim ant m ay have the
attached property released by filing a bond in double the am ouns
of the appraisem ent. A ny kind of property or credits belonging
to the defendant, in th e Dlaintiff’s own hands or In the hands of any
one else m ay be attached. There is a special provision for capital
stock of a corporation. ' The certificate itself m ust be. seized. Credits
not due m ay be attached, b u t wages, hire, or salary not due_can
not be attached, and 90 per cent .of wages, hire, or salary due ¡mall
always be exempt. (Act 1908, Ch. 665.) Im prisonm ent for _debt
is abolished. D efendant m ay be sued wherever he does business.
In addition to attachm ents against non-residents or absconding debtor,
for debt (I. e., a liquidated sum), as heretofore, attachm ents m ay
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, b ut in such cases no attachm ents can be issued
until a declaration is filed setting out specially and in detau the
breach of the contract complained of or th e to rt actually com m itted,
verified by the affidavit of the plaintiff or some one in his behaU.
and until a bond shall be filed sim ilar to th e bond required In a tta c h ­
m ents for fraud. (Code Art. 9.) All papers in attachm ent pro­
ceedings can now be amended, as in any other actions a t law. (Act
1898, Oh. 44.)
B a n k s. The Act of 1910, as am ended by the Acts of 1912 and
1914, m ade im portant changes in th e banking laws of this State.
The law now provides for the appointm ent of a Bank Commissioner
w ith broad powers for the exam ination of all banking institutions
in this State other than N ational Banks and an annual report thereon
to the Governor. Whenever capital is reduced by im pairm ent
commissioner m ay require Bank tQ m ake such deficiency good within
sixty days, and upon failure to do so m ay take,possession of property
and business of such institution and retain possession until affairs
are finally liquidated. This also applies where th e business is con­
ducted in an unsafe or unauthorized manner. The requirem ents
for. the incorporation of such institutions are fully set fo rth m the
act This act also provides for th e incorporation and supervision'
by th e S tate of saving institutions and tru st companies.
pS
C o lla te ra ls. The conversion by any banker, broker, m erchant,
attorney, or agent of collaterals is m ade a m isdemeanor. (See Code,
A rt. 27, Sec. 93.)
C o n tra c ts . The norm al condition of all persons Is one in which
they are capable of m aking any contract. The fourth and seventeenth
sections of the S tatu te of F rauds are in force in M aryland. A cts 1900,
Ch. 362, m ake it no longer necessary to show th a t th e consideration
for a promise to answ er for th e debt of another Is in w riting. A
citizen can hot m ake a contract w ith an alien enem y during the
continuance of hostilities; b u t aliens, n o t enemies, m ay contract and
hold real property as fully as citizens. The la te r cases decide contract
of Infants to be voidable and n ot void; and th ey are capable ot
ratification by Infants on arrival a t age of tw enty-one. The contracts
of Infants for necessaries are binding upon them . The contract of
a lunatic is voidable and n ot void.
The sta tu te provides th a t a
m arried woman m ay engage in business, contract, sue. and be sued
upon contracts and torts, as if unm arried. (Acts 1898, Ch. 457.)
All gambling contracts and contracts m ade on S unday are void.
C o n v e y a n c e s. No estate or title to any property lying w ith­
in this S tate, for any period above seven years, shall pass or take
effect unless the deed conveying the same shall be executed, acknowl­
edged. and recorded. (See Code, A rt. 21, Sec. 1.) E very deed
of real estate shall be signed and sealed by the grantor and bargainor,
and attested by a t least one witness. No words of inheritance neces­
sary, b u t every deed shall be construed to pass fee simple title unless
the contrary, appear. A scroll w ith the word "seal” therein by way
of a seal. is sufficient. A deed m ust be recorded w ithin six m onths
from date, in county or Baltim ore C ity, where land lies, b ut If recorded
after this, deed, while valid between parties, is invalid as to deeds
to bona fide purchasers w ithout notice recorded prior thereto. A body
corporate m ust em body in th e deed Itself th e appointm ent of an a tto rney to acknowledge th e deed as and for th e corporate act of said
corporation or have It acknowledged by th e President or Vice-PreslI den t w ithout such appointm ent. Vendors’ lien m ay be released in

1594
B A N K I N G A N D C O M M E R C IA L L A W S — M A R Y L A N D
---------- %original deed or upon records where recorded. (Code A rt. 66, Sec. s i ) .
_ C hapter 370, Acts of 1916, adds additional section to. Article 27 nf
Conveyances delectively executed m ade valid by Acts 1908, Ch. 105
Bagby s Code and provides th a t if any person shall make, or cause to
and A cts 1914, Ch. 259 an d Ch. 421.
be m ade, either directly or indirectly, througn any agency, whatsoever
C o rp o ra tio n s are organized under th e a u th o rity of th e General
any false statem ent as to his financial condition for th e purnose nf
incorporation Law, com pletely revised, Act 1908, Chap. 240. Liberal
procuring th e delivery of personal property, etc., shall be guiltv of a
provisions are m ade for general incorporation: only exception (for
m isdemeanor an d .be fined n ot more th a n $1,000,,or imprisonment fo?
one year.
1 1UI
m unicipal purposes) Is in the constitution. All corporations (under
the general law) m ust b ay a bonus ta x of one-eighth of 1 per cent
C hapter 371, of th e A cts of 1916 adds new section 831 of Baebv’«
upon its authorized oapital stock and an y Increase. Corporations
Code and provides th a t an y vendor of stock of goods who shall know­
have perpetual succession, m ay carry on business anywhere, m ay
ingly and wiUlmgly m ake or deliver any statem ent of which a n v
issue bonds, and secure them by m ortgage of all property including
m aterial portion is false, shall be guilty of a m isdemeanor and u p o n
franchises. Foreign corporations m ust file list of resident share­
conviction shall be fined $1,000, or im prisonm ent for one year. v
holders, an d am ount held. The corporation’s certificate m ust be filed
G a r n is h m e n ts . (See A ttachm ents.)
and $25 paid; annual renewal fee of $1 is charged. All corporations,
H u s b a n d a n d W ife. (See Dower, Divorce, and Married Women )
n o t paying a gross receipt ta x (a long enum eration), shall pay an
I n this S tate th e husband is n o t liable for wife’s ante-nuptial debt«
annual franchise ta x on th eir capital employed in this S tate, of 50
°°.ii,rac^s ' H usband is liable for necessaries of wife. A.cts 1898
ednts per $1,000 b u t no less th a n $25. If capital is over $500,000
Ch. 457, gives husband same Interest in wife’s estate as wife baa in
th en one-fourth of 1 per cent on the excess to $5,000,000, etc. Domes­
h u sb a n d s estate. M arried women are expressly authorized by the
tic corporations m ay issue all kinds of p referred and common stock,
Acts of 1900. Ch. 633. to become p artners and to contract with hus­
and exohange same for stock or good will. V aluation in absence
band. E ith er can relinquish interest In other’s real estate by joint
of fraud is conclusive. As to Stock certificates, see “ Uniform Laws ”
or separate deed, or by agent or attorney properly constituted
Law am ended by C hapter 596, Acts of 1916.
T he wife s property is protected by th e C onstitution from the debts
A ny corporation chartered by this state, which for a period of ten
of th e husband.
days next preceding is w ithout one resident agent, whose nam e and
post office address is given in charter or filed w itn S tate Tax Commis­
I n te r e s t. The legal rate of interest is 6 per cent per annum
sioner, m ay be deemed a defendant in an attachm ent in th e sam e
Judgm ents bear interest from th eir date. A person proved guilty
m anner as non-residence, unless said corporation shall have been
of usury forfeits th e excess over th e real sum or value of th e goods
incorporated under th e laws of this sta te prior to June, 1916, and
and chattels lent, and legal interest thereon. Since 1876, where the
have a t least one D irector, who is a citizen of this state, actually resid­
whole debt, including the usury, is paid, th e ushrious interest can
ing therein.
n ot be recovered back. Since Septem ber 1st, 1914, judgments
bear interest from th e date of th e verdict.
C o u rts . Term s and Jurisdiction. The circuit courts In the
counties have juricdiction a t common law in cases involving m ore
J u d g m e n ts are liens for twelve years from date of rendition on
th an $60, an d equity In all cases involving more th a n $20, T hey
any interest of th e defendant in real or leasehold property within
hold from two to four regular term s in each county a t which
th e county where rendered. They can be transferred from one county
th ey have a ju ry ; there are, however, interm ediate term s fixed by
to another by sending a copy of th e docket entries to the clerk for
th e rules, to which process m ay be m ade returnable. The circuit
record. The lien commences from th e date/Of the en try of th e docket
court an d circuit court No. 2 of Baltim ore city have exclusive equity
entries by th e clerk. Judgm ents are not liens on m ortgages. Judg­
jurisdiction in th e city. The superior court, th e court of coimmon
m ents are n ot liens on personal property until execution has Issued
pleas, an d Baltim ore city court have concurrent common law jurisdic­
and the w rit is in the hands of the sheriff. (See Act 1890, Chap
tion in cases involving more th a n $100. The court of common pleas
558, as to exam ination of judgm ent debtors.) (See Suits.)
has exclusive jurisdiction in insolvency, and the crim inal court in
L ie n s. (See Judgm ents.) Mechanics’ Liens.
E very building
crim inal cases. The orphans’ courts in Baltim ore city, and in the
erected, repaired, rebuilt, or Improved to th e ex ten t of one-fourth
counties have probate jurisdiction. Justices of th e peace have
of
its
value
is
subject
to
a
lien
for
work
done
or
m
aterials
furnished
jurisdiction to th e am ount of $100. The common law courts have
for or about th e same. Act of 1898, Ch. 502, abolished lien for
th ree term s in th e year, and rule days every m onth in th e year to
m
aterials
furnished
for
buildings
in
Baltim
ore
city.
Every
manbi« .
which process m ay be returnable. The equity courts have six term s
wh2 '. ’, i )r bridge, constructed or repaired is subject in like marm»?
In th e year, beginning the first Mondays of Jan u ary , March, May,
as buildings are, to a lien according to the provisions of Code 1888
Ju ly , Septem ber, and November.
A rt. 63, Sec. 22. All boats or vessels are subject to a lien for materials
Im p o s itio n s . W hen th e courts are Satisfied, by affidavit or
furnished or work done in building, repairing, or equipping th e sanie.
otherwise, th a t there are m aterial and com petent witnesses residing
To secure th e lien and lay foundation for enforcing it, th e material
w ithout th e S tate, th ey will direct th a t a commission be issued to
m an m ust w ithin six m onths after the last work has been furnished,
tak e th e testim ony of such witnesses. The commissioners are selected
file a claim in the superior court for Baltim ore City, or in th e circuit
by th e court, and m ust qualify before some person authorized to
court for the county. The liens are enforced by scire facias or by
adm inister an oath in the sta te where th ey reside. The depositions,
bill In equity.
duly certified by th e commissioners, shall be adm itted as evidence
Section 53 B, Bagby’s Code, am ended by C hapter 355, Acts of 1916,
a t tile tria l of the cause, subject to the sam e objections and exceptions
entitled “ A dditional C ontracts.” E very note, sale, or contract for
as th e sam e testim ony would be if the witness had been personally
sale of goods and chattels wherein th e title thereto, or lien thereon is
present in court and there exam ined. P arties have the right to be
reserved until th e same be paid in whole or in p art, shall be void as
present when th e testim ony is taken under th e commission, and
to th ird persons w ithout notice until such note, sale, or contract be
m ust receive reasonable notice of the tim e and place. E xam ination
m writing signed by th e vendee and be recorded in th e Clerk’s office
Is restricted to th e parties and Interrogatories and cross-interroga­
of Baltim ore City, or th e counties, and such recording shall be suffi­
tories annexed to th e commission. Testim ony of non-resident
cient to give actual, or constructive notice to th ird parties.
witnesses can also be taken upon proper notice, as provided by Sec.
L im ita tio n s of S u its. Accounts and notes are barred after
17 of A rt. 35 of th e Code.
three years, sealed instrum ents after twelve years; judgm ents twelve
D e s o e n t a n d D i s tr ib u tio n o f ' P ro p e rty . As to descent, see
years except against foreign corporations (no lim itations.) Act
Code 1904, A rt. 46, and as to distribution. Code, 1904, A rt. 93.
1914 Ch. 846. A verbal promise or acknowledgment will revive a
An a tte m p t to abrogate the Buie in Shelley’s case has been m ade by
debt barred by th e statute.
Oh. 144. A cts 1912.
M a rrie d W o m en . Act of 1898, Chap. 457, Code Art. 45, repeals
D o w er. The common-law right of dower exists In M aryland, and
and re-enacts th e entire law in this State. M arried women may
extends to equitable estates. By a ct 1898, th e husband’s dower
hold and dispose of their property lawfully as if unm arried, but
was created; an estate of th e husband In his wife’s estates of inheri­
husband m ust join in conveyances of real estate to release his in­
tance, exactly equivalent to th e wife’s dower in her husband’s estate.
terest. M arried women m ay engage in business, contract, sue, and
A devise or bequest of real or personal property to th e wife or husband
be sued upon contracts and for torts, as if unm arried. M arried woman
shall be construed to be in lieu of dower in lands or share of personal
is alone liable for ante-nuptial debts and contracts. H usband is
estate, respectively, unless otherwise expressed in th e will. If the
still liable for necessaries. Widow is entitled to dower in real estate,
widow o r widower renounces form ally In writing, however, such
and one-third of th e personal estate if there are children, and if no
provision m ade for her or him by th e will, within six m onths after the
children, one-half of th e personal estate; husband has sam e rights
grant o f adm inistration on th e estate of th e deceased husband or wife,
m wife’s property as wife has in husband’s property. Where the
th e dower rig h t and th e share of personal property rem ain undisturbed.
wife is adjudged a lunatic upon’ inquisition, and th e finding remains
(See M arried Women.)
m force, husband m ay convey after acquired property by separate
deed, as if unm arried.
E x e c u tio n s m ay issue and1judgm ents m ay be renewed or revived
b y scire facias a t an y tim e within twelve years from date of judgm ent
M o rtg a g e s are executed, acknowledged, and recorded same m
or from th e expiration of an y stay, and m ay be th ereafter levied
deeds, and are n ot valid against creditors unless recorded w ithin six
on an y property of the defendant. In th e circuit courts for the
m onths. There m ust be an affidavit m ade by the mortgagee or his
oountles th ere is a stay until th e first T hursday of th e term succeeding
agent a t an y tim e before recording, th a t th e consideration is true and
th e rendition of th e judgm ent, provided th e judgm ent is obtained
bona fide, and, in th e four Counties mentioned below, th a t th e mort­
a t th e second term after th e defendant is sum m oned. T here Is no
gagee will not require th e mortgagor, or any other person for him
sta y upon judm ents rendered in the courts of Baltim ore city or by
to pay th e tax levied upon th e m ortgage interest, and upon th e assign­
justices of th e peace in th e city or counties, b u t execution m ay issue
m ent of any m ortgage except for th e purpose of foreclosure, a like
forthw ith. The defendant m ay stay th e execution by superseding
affidavit m ust be m ade by th e assignee. If m ade by agent, he must,
w ith sureties for six m onths. Copy of docket entries of judgm ent
in addition, m ake oath th a t he is the agent of th e mortgagee. A
when recorded in another county m akes th e judgm ent a lien there.
like affidavit is required to chattel mortgages, and absolute bills
(Act 1890, Ch. 314.)
of sale, both of which m ust be recorded w ithin tw enty days. The
lien of a m ortgage m ay, by ceasing to pay interest or any install­
E x e m p tio n s . No hom estead law. W earing apparel, books and
m ent of th e principal for tw enty years, be barred. T hey m ay be
tools (not kep t for sale) and $100 of property in addition, w hether
foreclosed a t any tim e after th e debt bdcom.es due and before the
same consists of money, land, goods, or money payable as insurance,
lien is barred. Mortgagees are required to pay a tax of 8 per cent
benefit, or relief in th e event of sickness, h u rt, accident, or death,
on the interest covenanted to be paid in th e mortgage, in Somerset,
are exem pt from execution, except on judgm ents for breach of promise
M ontgom ery, Frederick, and Dorchester counties. No tax in Balti­
to m arry an d seduction, n o t applicable to a n y b u t actual bona
more C ity and other counties. (Code Art. 81, Ch. 187.)
fide residents of this S tate. E quitable Interests in personal property
can n o t be sold under execution, b u t m ay be levied upon, an a the
N o tes a n d B ills o f E x c h a n g e .
Negotiable Instrum ents are de­
lien th u s acquired m ay be enforced in equity. Choses in action m ay
fined by C h.119 bf th e Laws of 1898, which repeals all laws incon­
be attach ed .
sistent w ith th e provisions of this act. Section 20 provides as follows:
“An instrum ent to be negotiable m ust conform to th e following
F o re ig n C o rp o ra tio n s . (See Corporations.)
requirem ents: 1. I t m ust be in writing and signed by the m aker or
F o re ig n J u d g m e n ts . Judgm ents of th e courts of o th er states
drawer. 2. I t m ust contain a n unconditional promise or order to
certified under the a c t of congress, are proper causes of action against
pay a sum certain in money. 3. M ust be payable on dem and, or a t a
an y person subject to the process of th e courts of this S tate.
fixed or determ inable future tim e. 4. M ust be payable to order or
F r a u d . W hen an y false representation is m ade by one to another
to bearer; and 5, where th e instrum ent is addressed to a drawee,
w ith th e in ten t to defraud, and th e defrauded p arty , thinking the
he m ust be nam ed or otherwise indicated therein w ith reasonable
alleged fraud to be true, acts upon it, an y contract thus m ad e can
certainty.” I ts negotiability is h o t affected by a seal, or by a provision
n o t be enforced. B u t If th e injured p a rty knows such representations
which authorizes the sale of collateral securities in case the instrum ent
to be false, it can n o t be said to have influenced his conduct. For
be n o t paid a t m aturity, or authorizes a confession of judgm ent If
general doctrine in this S tate see McAleer vs. Horsev 35 Md. 439.
the instrum ent be n o t paid a t m atu rity ; or waives th e benefit of any
Giving checks or drafts w ithout provision for acceptance is prim a
law Intended for th e advantage or th e protection of th e obligor: or
facie evidence of in ten t to defraud, and is punishable as a crime
gives the holder an election to require som ething to be done in lieu
unless such provision is m ade within ten days. E very person buying
of paym ent of money. I t Is n o t necessary that paper should be
merchandise in bulk shall dem and and receive from th e vendor a
m ade payable a t a bank or any fixed place. To charge indorser,
w ritten statem ent under oath containing th e nam es and addresses
notice of non-paym ent m ust a t once be given to him . The time
of all creditors with am ount of indebtedness a t least five days before
of m aturity is regulated by A rt. 13, as follows: "Section 104: Time
th e sale is consum mated. T he vendee a t least five days before
of M aturity. Every negotiable instrum ent is payable a t th e time
consum mating such sale shall notify .all of said creditors either per­
fixed therein w ithout grace. W hen th e day of m atu rity falls upon
sonally or b y registered mail of such proposed purchase. A sale
Sunday, or a holiday, th e instrum ent is payable on th e nex t succeeding
or transfer o f goods in bulk w ithout such notice shall as to all sub­
business day. Instrum ents falling due on S aturday are to be presented
sisting creditors of the vendors be void.
for paym ent on th e n ex t succeeding business day, except th a t instru-


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B A N K IN G A N D COM M ERCIAL L A W S —-M A SSA C H U SETTS
m ents payable on dem and m ay. a t th e option oi th e holder, be preten ted to r paym ent beiore 12 o’clock noon» on Saturday» when th a t ,
entire day is n o t a holiday.” Legal holidays are Christmas.
N ew Y ear’s D ay, F ebruary 22, Good Friday. Ju ly 4, M ay 3 0 ,1 s t
M onday in September. 12th day of September. and th e 12th day of
October, all days of general and congressional elections throughout
th e S tate and an y day of public thanksgiving or hum ihation and
prayer proclaim ea by th e governor or legislature, and all Saturdays
after 12 o’clock noon are legal half holidays. M onday is treated
as Sunday when im m ediately preceded by one of th e holidays afore­
said. By act 1898, Ch. 198, it shall be lawful for banks and bankers
in th e city of Baltim ore to close their doors for business a t 12 o clock
noon, on each and every Saturday in th e year, and every Saturday
in th e year, after 12 o’clock noon, shall be a legal half-holiday, so
fa r as regards th e presenting for paym ent or acceptance, and the
protesting and giving notice of th e dishonor, of bills of exchange
an d other negotiable paper, and for these purposes shall be considered
as th e first day of the week, or Sunday, and all negotiable paper
shall be deemed to be presentable on th e secular day next succeeding.
Bagby’s Code am ended by C hapter 355, Acts of 1916. N otes
wherein reservation of title is embodied m ust be recorded m the
C lerk’s office of Baltim ore C ity, or in the counties.
P o w e r o f A tto r n e y . E very power of attorney authorizing an
agent o r atto rn ey to sell and convey any real estate, shall be attested
an d acknowledged in the same m anner as a deed, and recorded prior
to o r w ith th e deed executed In pursuance of such power of attorney.
A corporation shall have power to appoint an attorney for th e same
purpose, by Its corporate seal. Such power of atto m ey shaU be
deem ed to be revoked when th e Instrum ent containing the revocation
is recorded In th e office in which th e deed should properly be recorded,
P ro b a te L aw . (See A dm inistration of E states and Wills.)
P r o te s t is usually m ade bv n otary public. N otary m ust keep
register of protests. A p rotest of n otary public Is prim a facie evidence
of non-acceptance or non-paym ent, and of th e presentm ent of said
note for paym ent, or of said bill for acceptance or imyment, a t the
tim e and in th e m anner stated In th e protest, and th e protest shau
also be prim a facie evidence th a t such notice has been sent or delivered
in th e m anner therein stated. (See Notes and Bills of Exchange.)
R e p le v in is a rem edy to recover specific goods and chattels to
whose possession th e plaintiff Is entitled. Also th e proper
to recover possession of goods distrained unlawfully. Bond m ust be
given to th e S tate of M aryland, and any p arty having
In th e property, m ay. upon breach of any covenant in bond, m aintain
an action in th e nam e of th e S tate for his or her use.
S ales Sc N o tices. A ct 1910. Ch. 346, provides a Uniform Sales Act.
T a x e s. The county commissioners of th e several counties of the
S tate, and th e m ayor and city council of Baltim ore City are directed
to levy a ta x annually upon real and personal property situated
w ithin th e S tate, and no person who Is not assessed to th e sum ox
$100 shall be required to pay any tax. Beginning w ith 1915, the
S tate tax is thirty-tw o and one-third cents, beside the
T he C ounty tax on Banks located and in business anywhere in M ary­
land is uniform ly 1 per cent. T he property of religious, charitable,
benevolent, and educational institutions, and cemetery companies is
exem pt from taxation. On tim ely application exemption m ay be
had for m anufacturer’s tools and m achinery in actual use from M unic­
ipal taxation in Baltim ore C ity and m some of th e Counties, and
beginning w ith 1915, from S tate taxation. Collectors m ay sell
property to compel paym ent of overdue taxes, upon giving due notice
of sale, and complying w ith other requisites of statu te, and any person
interested in property m ay redeem within twelve calendar m opths
' from d ate, an d in default of redem ption, title to property yests m
purchaser. Taxes are considered in arrears on first
next succeeding th e d ate of their levy, and bear interest from th a t date
“ U n ifo rm S ta te L a w s ” intended for adoption by ah the States
and adopted by M aryland: (1) Negotiable
(61
Lading, (3) Sales, (4) W arehouse Receipts, (5) Stock transfer, to;
P rc^ tificaft ^ ° r ofg c a S te f' stock, bills, of lading, and warehouse re­
ceipts, roughly speaking, (1) are negotiable, (2) represent th e property
certified to.
W ills of land or personal property, and any codicil 'thereto, m ust
be in writing, signed by th e testato r, or some one else
his presence, a t his request, and witnessed by two
witnesses, as and for last will and
presence of all th è witnesses thereto. Nuncupative wills lnvaua
except In case of disposition of personal property by soldiers and
marines in actual service. E very will or other testam entary m struS
e x e c u t e d l i S this S tate in th e
by law
either of th e place where executed or of the tes\a to r at a ? i^ h a li be
according to th e forms required by the law o f.tin s Statei s h a llb e
deemed to be legally executed, and shall
effect as if executed in th e mode prescribed by th e law ot this »tate,
provided.sa ffi tost wffl and testam ent is. in V ^ m t c M n ^ v by th e testato r; and if th e testator was originally^donucfied mi M ary­
land, although a t th e tim e of making the will
th e tim e of Ms
death he m ay be domiciled elsewhere, th e said last wiU or t e a m e n
tary instrum ent so executed shall be adm itted
orphan’s court of this S tate; and when so adm itted
by and construed and
without regard to th e le x domieihi-. unl^ S
declare a contrary intention in said will or testam entary instrum ent.
Ondo Art 93 Ch. 334. No will, testam ent, codicil, or other testa­
m entary paper shall be subject to caveat or other objection to its
validity after th e expiration of three yearn from
^cven v ^ r s
1894 Ch 405 ) W hen a person is unheard of for above seven years,
and suDDOsed to be dead, th e orphans’ court, under th e provisions
of Act of 1908, Ch. 125, m ay grant letters testam entary or of adm in­
istration as th e case m ay be.
¡A , onn
W o rk m e n ’s C o m p e n s a tio n . By the Act of
thri^am nlovees
provision is m ade for th e insurance by
^ fnrh rom ^ensatkm
engaged in extra-hazardous occupatmns, to provide
n^ t i d S
fo rin ju rie s and death. This Act is intended to superseae witnm
its scope recovery for injuries through neghgence
J',
“ ¿ t ”
do away w ith such defenses as assumed risk,
fellow s a v a n t
and, to some extent, ‘‘contributory neghgence. t ^ ® ^ rta"ofa com
ous employments are enum erated a t len^ - aod th e extent or co
pensatimi set out. Employers and em pioye^. m ay by filing agrees
m ent, classify their occupation as extra-hazardous, although o.
enum
erated
is Act.benefits
Articleto101,
^ r i f i ^ t ^ e fdefendants
e n d a n t s upon
upon
of 1916,
so asintothextend
alien^ ^non-resident
certain term s.


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1595

S Y N O P S IS OF

T H E L A W S OF M A SSA C H U SETTS
RELATING TO
B A N K IN G A N D COM M ERCIAL U S A G E S
Revised July 1, 1917, by L loyd M a k e p e a c e , A ttorney a t Law.
Boston, M ass. (See C ard in A ttorneys List.)
The next Legislature convenes January 2, 1918.
A c k n o w l e d g m e n ts a n d D e e d s . Acknowledgment» m ay be m ade
before any justice of the peace, notary public or special commissioner
in th e S tate: when th e acknowledgement is m ade by an y person with­
out this S tate and w ithin any other state, territory or distriot of the
U nited States, it m ay be m ade before any officer of such« state, terri­
to ry or district authorized by the laws thereof to take th e 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 th e se alo f 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 resffiea.
under seal of said court, certifying as to the a u th o rity of such o f flw
to take acknowledgments and as to the genuineness of bis signatm e.
In deeds where there is more th a n one grantor, the acknowledgm ent
of one of them Is sufficient.
m B ts g i .
No separate exam ination or acknowledgment, of wife Joining In a
release of dower necessary. Conveyances of land are
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 n ot be valid except as against th e grantor and person»
having actual notice of It, unless recorded in th e county In which the
real estate is situated. Deeds m ust be under steal, a scroll being
Insufficient. No subscribing witness is necessary. Release of dower,
hom estead and other interests m ust be explicitly stated .in deed, wife s
Joining in deed m erely, being insufficient.
A c tio n s . There are three classes of actions: oontract, to rt, and
replevin. Actions a t law a re begun by writs Issued Inblank form by the
clerks of th e several courts. No declaration need be inserted to the
writ, except In cases of arre st on m esne process or of an attach m en t
of a vessel. Suits in equity are begun by filing a bill upon which a
subocena is issued by tlie cleric of th e court. Actions begun by
trustee process m ust be brought In th e county In which th e trustee
or one of them resides or has his usual place of business.
A d m in is tr a tio n of E s ta te s . The judge of probate for th e cotm ty
where deceased last resided m ay appoint any person of suffleleaat
capacity as executor or adm inistrator. Executors or adm inistratom
are required to give a bond of about double th e value of the personal
estate. An executor will be exem pt from giving sureties if testator
so directs. An adm inistrator will be exem pt if all persons interested
In this S tate except creditors consent and all creditors are notified By
publication. In case a non-resident is appointed ex ecu to r or adm in­
istrator, he m ust appoint a resident agent. There are public adm in­
istrators to eacn county to whom adm inistration Is granted upon
estates of persons who die intestate leaving property, and n o t having
any husband, widow, or heir to th is S tate. ! Ancillary adm inistration
m ay be granted upon th e estate of a non-resident who dies leaving
property In this S tate. Every adm inistrator and executor shall fllo
an inventory within three m onths, and publish notice of his appoint­
m ent, Notice of a debt and dem and for its paym ent should be given
to an executor or adm inistrator w ithin six m onths after his appointm ent and the debt should be paid after six m onths and withm one
year of th e appointm ent. No suit can be brought by a creditor
against an executor or adm inistrator withm six m onths after his
giving bond, except on a claim n ot affected by the msolvency of th e
estate No suit can be brought against an executor or adm inistrator
who has published notice of his appointm ent, after one year from
tim e of his giving bond, unless he has received new assets after the
expiration of the one year, or unless further tim e is allowed by court.
A creditor whose claim does n ot accrue within t h e o n e year m ay
cause assets to be reserved to answer to his claim. When th e estate
is insufficient to pay all claims, th e executor or adm inistrator .shall
represent the estate insolvent, and commissioner will be appointed
to receive proof of claims. Claims for funeral expenses, last sickness,
and charges of adm inistration, are not affected by th e insolvency of
the estate. Executors and adm inistrators shall render an account
a t least once a year.
A llen s. Resident or non-resident aliens m ay sue and be sued and
m ay hold and convey real estate.
A rrest, i n an action of contract, th e defendant unless she is a
woman, m ay be arrested on mesne process provided th e plaintiff, Mid
except in actions on negotiable instrum ents, th e original p a rty .to th e
contract or his executors or adm inistrators m akes affidavit and
satisfactorily proves to th e court to which th e w rit is returnable th a t he
Expects to recover a sum amounting to $20; that he believes th a t de­
fendant has property which he does not intend to apply to paym ent o f
plaintiff’s debt; th a t he believes th a t defendant intends to leave the
S tate. Actions of to rt, against women as well as men, except for
slander or libel, m ay be begun by arrest of th e defendant, on th e
plaintiff or some one in his behalf making certain affidavits. A de­
fendant arrested on mesne process m ay give bail or he m ay apply to
take an oath th a t he does not intend to leave th e State, or th e oath
for relief of poor debtors; on taking such oath he is released from
arrest No arrest can be m ade if the property of defendant is attached
upon th e same writ. On an execution,- except for costs, or for ali­
m ony or one issued in an action of to rt, or where debtor is about to
leave the State, he can not be arrested until he has first been cited
before a m agistrate for examination, and it appearing th a t he has
property and refuses to assign it, th e m agistrate m ay order his arrest.
W hen arrested on execution,the debtor m ay apply to tak e th e oath
for relief of poor debtors.
A s s ig n m e n ts for benefit of creditors. A voluntary assignm ent to
trustees for benefit of creditors can n ot be avoided by creditors who
assent thereto, except by proceedings in bankruptcy begun w ithin
four m onths or by proof of fraud. If there is property in excess of
th e claims Of creditors who have assented, th e excess m hands or the
trustee can be reached by trustee process. Acts done in good faith
bv th e trustee under an assignment are valid, though th e assignm ent
be afterw ard set aside, if th e assignment is assented to in w ritin g b y
a m ajority in num ber and value of the creditors not secured. The
trustee shall on acceptance of th e tru st give notice in writing to all
known creditors of th e assignment and acceptance thereof and shall
deposit w ith th e clerk of th e city or tow n whterein th e debtor has his
principal place of business a Copy of th e assignment. T he above
would probably n ot apply under th e provisions of th e N ational
B ankruptcy Act.

Insolvency.

There Is an Insolvent law,lbutglt is superseded by the

M .l ln n g l R a n t n m t O T A ß t o f 189 8 .

1596

BANKING AND COMMERCIAL LAW S—MASSACHUSETTS

A tt a c h m e n t . All real estate, goods, and chattels n ot exem pt,
m ay be tak en In attach m en t on th e original w rit and held as security
to r Judgm ent, except th a t lands an d tenem ents can n ot be attached
in suits Involving less th an $20. A ttachm ents m ay be m ade In suits
by or against non-residents as well as In suits by or against residents.
No bond is required to m ake an attachm ent. Shares of stock in
corporations organized under laws of this S tate, or of United S tates
cannot be attached except by bill In equity. A ttachm ent of shares of
stock is n o t valid against a bona fide transfer, although n ot recorded In
book of corporation. Shares in foreign corporation cannot be attached
except by bill in equity. D ebtor m ay dissolve attach m en t by furnish­
ing bond with sureties to pay Judgm ent obtained or value of property
attach ed determ ined by appraisem ent. U pon affidavit m ade before
th e C ourt to which th e w rit is returnable by th e original p a rty to
th e co n tract except in actions on negotiable instrum ents th a t he
has reason to believe th a t th e debtor intends to leave th e S tate and
has p ro p erty not exem pt from attachm ent which he does not intend
to apply to th e paym ent of plaintiff’s claim, th e debtor m av be arrested
an d held to bail. D ebtor against whom judgm ent is rendered for
over $20 m ay be subjected to sworn exam ination touching his prop­
erty , an d if he refuses to deliver up such property (not being exem pt
from attach m en t), an order for arrest will issue and he can then
ap p ly to tak e the poor debtor’s oath and be examined as to his prope rty after notice to creditor. Proceedings in insolvency dissolve
attach m en ts m ade w ithin four m onths of first publication. An
a ttach m en t is dissolved b y d eath of th e defendant if adm inistration
is gran ted upon his estate upon application m ade w ithin one year
afte r his death.
B a n k s . In this S tate, safe deposit, loan and tru st companies are
governed by th e provisions contained in chapter 116, revised laws, and
am endm ents thereto. Under th e law tw enty or more persons and
their successors m ay form a corporation for the purpose of carrying
on the business of banking. The general court m ay. by special act,
annul o r dissolve any such corporation; b u t its dissolution shall not
Impair an y rem edy against the sam e for liability previously incurred.
The capital stock of each bank shall n ot be less th a n $200,000 nor more
th an $1,000,000.00, except In cities or towns whose population is not
more th an 100,000, the capital m ay be not less th an $100,000.00,
an d except also th a t in towns whose population is not more than
10,000, th e capital stock m ay be not less th an $50,000, divided into
shares of th e p ar yalue of $100.00 each: No business shall be trans­
acted until th e whole am ount of its capital stock is actually paid in.
Before commencing business the president and directors shall m ake a
certificate specifying th e corporate name, which shall be different
from an y previously organized in th e commonwealth; th e location
of said b an k ; the am ount and num ber of shares of its capital stock;
nam e and residence and num ber of shares of each stockholder, and
th e tim e when it is to go into operation; a copy of which certificate
shall be filed with the secretary of th e commonwealth. No part
of th e capital stock can be sold or transferred until the whole am ount
thereof is paid up. No person can hold more th an half th e capital
stock, exclusive of th a t held as security. In addition to the capital
stock to which a bank is entitled, th e commonwealth m ay subscribe
thereto an am ount n ot exceeding 50 per cent of its authorized capital,
when provision is m ade therefor by law. Said commonwealth shall
be entitled to its proportionate share of profits and dividends. Upon
th e vote of three-fourths of its stockholders, a bank m ay increase its
capital stock to ah am ount not exceeding $1,000,000. The cashier
is required to give bond,in n ot less th an $20,000, w ith two or more
suretie«, before entering upon his duties. T he debts of a bank shall
a t no tim e exceed twice the am ount of capital stock paid in exclusive
o f deposits n o t bearing interest, nor shall there be due the bank more
th a n double th e am ount of capital stock paid in. E very bank is
required to keep a reserve in lawful money of the U nited States, equal
t o 15 per cent of its liability for circulation and deposits in C ity of
Boston. T ru st companies doing business in th e C ity of Boston shall
keep a reserve equal to 20 per cent of its liabilities. Stockholders of
a bank are liable in their individual capacity for the paym ent of all
¡the circulating notes rem aining unpaid in proportion to the stock they
respectively hold when it stops paym ent.
Any com m ittee appointed by the general court m ay exam ine Into
th e affairs of an y bank, and shall have free access to Its books and
vaults. The bank commissioner shall visit once in every year, and
as much oftener as they m ay deem expedient, all such banks, and
exam ine all their affairs, and m ake such inquiries as m ay be necessary
to ascertain th eir condition, and m ake a report of such investigation
to the general court.
C h a tte l M o rtg a g e s . C hattel m ortgages m ust be recorded In the
records of th e city or town where th e m ortgagor resides when the
m ortgage is m ade, and in th e city in which he then transacts business;
every m ortgage m ust be recorded w ithin fifteen days of th e date;
until recorded th e m ortgage is n ot valid except between the parties,
unless possession' is delivered to and retained by th e mortgagee. On
loans less th an $1,000 secured by mortgage, th e rate of Interest can
n o t exceed 18 per cent. I t Is a crim inal offense to remove, sell, or
conceal m ortgaged property.
C o rp o ra tio n s.
By special act of 1903. chapter 437, th e law of
business corporations was revised and applies to all corporations
organized In th is commonwealth for th e purpose of carrying on busi­
ness w ithin th e commonwealth for profit, except th e following;
Banks, savings banks, co-operative banks, tru st companies, surety
or Indem nity 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 w ater companies, cemetery, or crem atory companies, or
an y corporations which now have or m ay hereafter have th e right to
tak e or condemn land, or to exercise franchises in public ways, pro­
vided th a t corporations formed for purpose of dealing in real estate
shall sta te th e term of th e duration of th e corporation, such term not
to exceed fifty years.
Under this a c t three or more persons m ay associate together and
form a corporation for carrying on an y lawful business n o t included
in the above provisions. Such a corporation m ust have a capital
of n o t less th an $1,000. There is no m axim um lim it. The shares
.must have a p ar value of n o t less th an $5. The stock m ay be divided
into two or more classes with such preferences, voting powers, restric­
tions an d qualifications as m ay be fixed by the agreem ent of associa­
tion. Upon due organization of the associates and filing a copy of
th e agreem ent of. association with the commissioner of corporations
an d on paym ent of a fee of one-tw entieth of i per cent of th e capital,
b u t n o t less th an $25, a certificate of incorporation is issued by the
secretary of state. The capital stock m ay be issued for cash property,
tangible or intangible services or expenses. The am ount of capital
stock m ay be increased from tim e to tim e. The corporation m ust
have n o t less th an three directors, president, clerk and treasurer.
The directors, treasurer and clerk are elected by th e stockholders.
The president is chosen by and from the board of directors. The
¡clerk m ust be a resident of the Commonwealth. Meetings of stock­
holders m ust be held w ithin the commonwealth, b u t directors m ay
m eet w ithin or w ithout t h e ; commonwealth. Voting by proxy is
perm itted, b u t no proxy dated more th a n six m onths before the
m eeting nam ed is valid. Any corporation m ay hold, purchase, con­
vey m ortgage or lease such real or personal property as th e purposes
of th e business m ay require.
E very such corporation is required to file an annual report of its
condition, an d if its capital stock is over $100,000, to file ft w ritten


https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis

statem ent under oath bv an auditor. I t is also required to m»*.
an annual return to the ta x commissioner. Every corporation orv»«
ized under the general law is taxable locally upon all real ¿state
m achinery owned by i t in the commonwealth, and is subject t o .
franchise ta x aggregate m arket value of its shares after deducting
therefrom the Value of real estate and m achinery subject to lon3
taxation as above, a n d th e value of any property of th e corporation
situated In another s ta te or country and subject to taxation thorn
Every foreign corporation which has a usual place of businem
here, or is engaged here perm anently or tem porarily in the const™»!
tion, erection, alteration or repair of a building, bridge, railroad r«n
way or structure of any kind, shall before doing business here aDDoint
the commissioner of corporations, its attorney for the service of oroc
ess, such authority to continue as long as any liability remains outstanding against it in this commonwealth; and shall file with the
commissioner of corporations a copy of its charter, articles or certifl
cate of incorporation, by-laws, and a certificate setting forth its
name, location, nam es and addresses of its officers, date of its annual
meeting, am ount of its capital stock authorized and issued, the num­
ber and par value of its shares, th e am ount paid thereon, and details
of any paym ent thereof not m ade in money. T hey are required
to file annual statem ents w ith the commissioner of corporatioffs
showing their condition. Officers of a foreign corporation are liable
for all debts and contracts m ade while they are such officers if anv
statem ent Or report required by law m ade by them is known to be
false. Failure to file the ab o v e' statem ents renders every officer
and agent liable to a fine of not more th an $500. A foreign cor­
poration is sfibject to taxation locally on its real estate, machinery
and merchandise in this commonwealth, and to an excise 'a x of
one:flftieth (1-50) of one per cent of the par value of its authorized
capital, b u t the excise tax shall not exceed $2,000 a year.
C o u rts . Term s and Jurisdiction. Trial Justices m ay severally
hold courts within the counties for which they are appointed, ana
shall have original Jurisdiction, exclusive of th e superior court, of all
actions of contract, to rt, or replevin, where the debt or damages
dem anded or value of the property alleged to be detained does not
exceed $100, and concurrent jurisdiction w ith the superior court of
such actions where such am ount exceeds $100 and is less than $300
Police and district courts m ay in their respective counties have originai
jurisdictiqn, exclusive of th e Superior Court, of actions of contract, tort
or replevin, in which th e debt or damages dem anded or the value of
the property alleged to be detained does n ot exceed $100 and have
original an d concurrent jurisdiction w ith the Superior C ourt of actions
of contract, to rt or replevin in which the debt or damages demanded
or the value of the property alleged to be detained is more than $100
and does not exceed $1.000. The suprem e judicial court has original
jurisdiction in all equity m atters and m ay on appeal hear all m atters
determ ined by th e probate court, and determ ine questions arising under
wills. Superior court has jurisdiction where th e am ount claimed ex­
ceeds $20. M unicipal court of the city of Boston has jurisdiction con­
currently w ith th e superior court in the county of Suffolk, in actions
where the debt does n ot exceed $2,000, provided one or more of the
defendants resides or has his usual place of business in the county of
Suffolk.
L a n d C o u rt has exclusive original jurisdiction for registering titles
to real estate under the Torrens system, and of writs of entry and
petitions to clear titles to real estate.
D e p o s itio n s . T he deposition of a witness w ithout th e State may
be taken under a commission issued to a person qualified to take
depositions as stated in commission in any other sta te or country by
th e court in which the case is pending, or it m ay be taken by a com­
missioner appointed by th e governor for th a t purpose. Every
deposition taken under a commission m ust be upon w ritten inter­
rogatories, to be exhibited to the adverse party, and cross-inter­
rogatories m ay be filed by him b u t neither p arty to th e action shall
atten d a t th e taking of th e deposition or be represented by attorney.
Oral exam ination is allowed if th e court so orders.
D o w er a n d C u rte s y . A wife is entitled to dower in this State as
a t common law. A husband shall on the death of th e wife hold oneth ird of her land for his Hie, this interest is known as curtesy. If the
deceased leaves no issue, th e surviving husband or widow shall take
$5,000 and one-half of the rem aining real estate and personal property.
If deceased leaves issue, the surviving husband or widow takes onethird of the rem aining real estate and personal property. If deceased
leaves no kindred, a surviving husband or widow shall take the whole
of the rem aining property.
E x e c u tio n s can n ot issue until tw enty-four hours after judgm ent
rendered, and an original execution m ust 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.
There is no stay of execution except by special order of court. Execu­
tions m ay be served by levy upon real or personal estate of the debtor
or by arrest when arrest is allowed. C ertain personal property and
real estate are exem pt from levy.
E x e m p tio n s . Hom estead, if recorded, to th e value of $800.
Necessary wearing apparel of fam ily, certain specified articles of
household furniture, and $300 w orth 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. M aterials and
stock designed and necessary for carrying on his trad e and Intended to
be used or wrought therein, n o t exceeding $100 in value. Shares in
co-operative associations n o t exceeding $20 in value, funds of railroad
relief societies assessment Insurance benefits, uniforms, arm s, and
equipm ents of m ilitia officers.
F ra u d s , S t a t u t e of. No contract for sale of goods for $500 or
more shall be good unless the purchaser accepts and receives p art, or
gives som ething in p a rt paym ent or unless a memorandum in writing
is m ade of the bargain and signed by p arty to be charged. No action
can be brought in th e following cases unless the contract is in writing
and is signed by p arty to be charged or his agent: .1 . To charge
an executor, adm inistrator, or asignee in Insolvency. 2. To charge
a person for th e debt of another. 3. On a contract for the sale of
real estate or interest therein. 4. On an agreem ent n ot to be per­
formed w ithin ofie year.
H o lid ay s. Ja n u ary 1st., New Years D ay, ' F ebruary 22nd,
W ashington’s B irthday. April 19th, P a trio t’s Day. M ay 30th,
D ecoration Day. July 4 th ,. Independence Day, F irst M onday
in September, Labor Day. October 12th, Columbus Day. Novem­
ber, Thanksgiving Day. December 25th, C hristm as Day. Revised
Laws provide th a t when the day or the last day for the performance
of any act falls on Sunday or on a legal holiday, th e act m ay be per­
formed on the next succeeding secular or business day, unless it is
authorized or required to be performed on Sunday or on a legal holi­
day. Also when any of said dates fall on Sunday, th e following day
shall" be observed as th e holiday. Banks close a t 12 o’clock noon
on Saturdays.
I n t e r e s t . Legal rate, 6 per cent, which is allowed on Judgm ents.
There are no usury laws, except on loans less th an $1,000, an d any
rate m ay be reserved or contracted for in writing, and rate reserved
in note is payable a fter m atu rity of note as before; loans less th an
$1,000, shall be dischargeable upon paym ent or tender of th e sum
actually borrowed and interest in an am ount n ot to exceed 3 per cent
per m onth. A supervisor of loans has charge of th e business of making

BANKING AND COMMERCIAL. DAW S—-MICHIGAN
small loans. (See S tatu te of 1916, Small Loans Act:) NO bond can
be issued by a corporation a t more th an 7 per cent.
J u d g m e n ts in lower courts m ay be entered within four days of
default, b u t do n ot constitute a lien upon realty or personalty of
debtor not attached on the original writ. Are not outlawed for
twenty years. Foreign judgm ents are proved by a copy of the record.
L im ita tio n o f S u its . C ontracts or liabilities, express or implied
and not under seal and n o t otherwise limited, six years; real actions,
those upon an attested note, if suit is brought by original payee or
his executor or adm inistrator, and personal actions on' contracts not
limited, tw enty years. Revivor: P a rt paym ent by the p arty sought
to be charged or new promise to pay in writing. Absence from the
State prevents th e running of the sta tu te of lim itations as to a defen­
dant until he comes into th e State. If the person entitled to bring an
action is a minor or is insane or imprisoned when the right to bring
such action first accrues, such action m ay be commenced within, the
time hereinbefore lim ited after th e disability is removed. The S tatue
does n ot rim against those residing o ut of th e State.
M a rrie d W o m e n . The real and personal estate of a married
woman, acquired a t an y tim e, rem ains her sole and separate property,
not subject to th e control of her husband, nor liable for his debts.
Married women m ay carry on trad e or business, m ake contracts, sue
and be sued. In all m atters relating to th eir separate property, and
such contracts are n o t binding upon th e husband. Wife carrying
on business on own account m ust reoord certificate w ith city or town
¿lerk: neglect to do th is renders her property so employed liable for
husband's debts, and renders husband liable for her debts thus con­
tracted. Deeds, b u t n ot m ortgages can be m ade direct from husband
to wife. (See Dower and Curtesy, as to rights of husband in estate
of deceased wife.)
M o rtg a g e s . Mortgages now In common use contain a provision
authorizing a sale of premises in case of a breach of any of the con­
ditions. Power of sale mortgages m ay be foreclosed by a sale in
accordance w ith th e provisions of the power contained in the m ort­
gage, and an affidavit th a t the m ortgagee has complied w ith the pro­
visions of th e m ortgage shall be recorded in the registry of deeds
within th irty days after the sale. Notice of the sale m ust be pub­
lished once a week for three weeks (sale to be n ot less th an tw entyone days after first publication), the publication to be in the city or
town where property is situated or, if no paper so published, then in
a paper published In th e county. Proper execution of the power
of sale forever bars all right of redem ption. Mortgages m ay also be
foreclosed by en try and peaceable possession for three years, which
entry m ust be certified by two witnesses. Possession m ay also be
obtained by action a t law.
N o tes a n d B ills of E x c h a n g e .. The law of negotiable instru­
ments is codified in Revised Laws, Ch. 73, taking effect Jan u ary 1,
1899. I t does n o t apply to instrum ents m ade and delivered prior
to th a t d ate. An instrum ent to be negotiable m ust be in writing,
signed by th e m aker o r drawer; m ust be a promise to pay a sum cer­
tain in money, on dem and or a t a fixed tim e payable to order or
bearer. An instrum ent payable upon a contingency is not negotiable.
The validity an d negotiable character of the instrument^ are not
affected by the fact th a t it is not dated, or does not state where pay­
able. An instrum ent is payable on dem and when it Is expressed
payable on demand, or on presentation, or when no tim e for paym ent
is expressed. W hen an Instrum ent is payable on dem and present­
ment m ust be m ade w ithin a reasonable tim e; presentm ent m ust be
made a t a reasonable hour on a business day, a t the place specified;
when no place is specified or address given then a t the usual place of
business or residence; th e Instrum ent m ust be exhibited and when
paid delivered to p arty paying it. Presentm ent for paym ent Is dis­
pensed w ith when th e drawee is a fictitious person, or by waiver of
presentm ent. E very negotiable instrum ent is payable a t tim e fixed
therein w ithout grace, except drafts and bills of exchange payable
within th is S tate a t sight, on which three days grace are allowed;
when th e day of m atu rity falls on Sunday or a holiday the Instrum ent
Is payable on th e next succeeding business day. Instrum ents falling
due on Sunday are to be presented for paym ent on the next succeeding
business day, except th a t those payable on dem and m ay a t option
of th e holder be presented for paym ent before 12 o’clock noon on
Saturday, when th a t entire day is n ot a holiday.
J ,
The acceptance of a bill of exchange m ust be in writing and signed
by th e drawee. The drawee is allowed tw enty-four hours after pre­
sentm ent to accept th e bill.
W hen a foreign bill is dishonored by non-acceptance it m ust be
protested for non-acceptance; if not so protested the drawer and
Indorsers are discharged.
,
, ‘ (£ ,
... _
A negotiable promissory note Is an unconditional promise In writing
by one person to another, signed by the maker, to pay on demand or
at a fixed tim e a sum of money to order or to bearer. A check is a
bill of exchange drawn on a bank, payable on demand
A check
m ust be presented for paym ent within a reasonable tim e after its
issue. W hen a check is certified a t request of bolder the drawer and
indorsers are released;
’
,
__ , _
A bank includes any person or association of persons carrying on
business of banking, w hether incorporated or not.
The negotiable instrum ent act of Massachusetts is about the same
as th e law now in operation in New York, Connecticut, Colorado,
Florida, Maryland, and Virginia. All persons becoming parties to
promissory notes payable on tim e by a signature in blank on the back
thereof, shall be entitled to notice of th e non-paym ent thereof the
same as indorsers. Checks drawn on a bank m ay be paid notw ith­
standing th e death of drawer if presented w ithin ten days after date,
and a savings bank order if presented within th irty days after d ate.
S u its. Civil actions In general, except those concerning land (if
one of th e parties lives in the S tate), m ust be brought in the county
where one of them lives or has his usual place of business. Where
all parties are non-resident, action m ay be brought in any county.
A ttachm ent of property owned by defendants residing out of S tate
m ay be m ade sufficient to give jurisdiction in suit after notice published
by order of court. Such notice to be given within one year from the
entry of th e suit. Persons com m orant in State m ay also be arrested
on mense process and held to bail.
T ax es are assessed as of the first day of April in each year, and on
real estate are a lien for two years after they are committed to the
collector; b u t the. collector m ay sell real estate for taxes after two
years have elapsed, unless the estate has been alienated prior to the
giving of th e notice of sUch sale. If not paid on demand, collector
m ay sell after advertisem ent. Owner, his heirs or assigns, m ay
redeem within two years by paying or tendering to the collector
when he exercises th e power of taking, or to the. purchaser of the sum
paid by him, with 10 per cent interest and all necessary intervening
charges, and person having title m ay red'eem in two years after notice
if property is taxed to a person unknown, or to tenant or occupant
not owner, or wrong person or m ortgagee of record. The purchaser
under a ta x sale, if resident in th e 'c ity or town where the estate Is,
m ust record his residence or place of business. If he resides elsewhere
he m ust appoint an agent or attorney and record such appointm ent,
under S tatu te 1916 ch. 269 income from stocks, bonds,
18 * „ ffict
to an annual tax a t rates stated. For full details see said ch. 269.
L egacy a n d S u ccessio n T ax. All property witMn th e state
belonging to inhabitants of th e sta te and a ll real estate within the
sta te belonging to persons who are not inhabitants which shall pass
by will or by laws regulating intestate succession or by deed, gran t or


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1597

gift to take effect m possession after th e death of th e grantor to any
person, absolutely, or in tru st, except to or for th e use of charitable,
educational or religious societies or institutions the property of which
is by the laws of the state exem pt from taxation, or for or upon tru st
for any charitable purposes to be carried out w ithin th e State, or to or
for the use of a city or tow n within th e S tate for public purposes, shall
b e subject to th e following tax: all property passing to a husband, wife,
lineal ancestor, lineal descendant, adopted child, lineal descendant of an
adopted child, the adoptive parent, or lineal ancestor of an adopted
parent, the wife or widow of a son, or th e husband of a daughter, of.
the decedent, shall be subject to a tax of one per cent of its value if
said value does not exceed $50,000, to a tax of tw o per cent if its value
exceeds $50,000 and does n ot exceed $250,000, to a tax of 3 per cent
if its value exceeds $250,000 and does n ot exceed $1,000,000, and to a
tax of 4 per cent if its value exceeds $1,000,000. All such property
passing to or for the benefit of a brother, sister, nephew or niece of a
decedent, shall be subject to a tax of 2 per cent of its value if its value
does n ot exceed $10,000, to a tax of 3 per cent if its value exceeds
$10,000, and does not exceed $25,000, to a ta x of 5 per cent if its value
exceeds $25,000 and does not exceed $50,000, to a tax of 6 per cent if
its value exceeds $50,000 and does not exceed $250,000, to a tax of
7 per cent if its value exceeds $250,000 and does n o t exceed $1,000,000,
and to a tax of 8 per cent if its value exceeds $1,000,000.
Property passing to or for th e benefit of any other person, not
exempt, shall be subject to a tax of 5 per cent if its value does not
exceed $50,000; to a tax of 6 per cent if its value exceeds $50,000, ana
does not exceed $250,000; to a tax of 7 per cent if its value exceeds
$250,000 and does not exceed $1,000,000; and to a tax of 8 per cent
_
if its value exceeds $1,000,000.
. . .
No bequest, devise, or distributive share passing to a husband, wife,
father, mother, child, adopted child, adoptive parent of a deceased,
unless its value exceeds $10,000, and no other bequest, devise. Or dis­
tributive share of an estate unless its value exceeds $1,000 shall be
subject to a tax.
.
i
Shares of stock of non-resident decedents in M assachusetts corpora­
tions, national banks and tru st companies are subject to a tax on the
transfer thereof.
T ranisfer of C o rp o ra tio n S to c k . The delivery of a stock certifi­
cate of a M assachusetts corporation to a bona fide purchaser or pledgee,
for value, with a w ritten transfer of the same, or a. w ritten power of
attorney to sell, assign or transfer th e same, signed by owner of cer­
tificate, shall be a sufficient delivery to transfer the title as against
all parties.
T ru s te e P ro c ess. All personal actions except replevin, and actions
of to rt for malicious prosecution, slander, libel, or assault and b attery
m ay be begun by trustee process, and goods, effects, or credits of
defendant in hand of a third person m ay be attached and held to
satisfy final judgm ent.
W ills. Any person of full age m ay m ake a will disposing of his
estate. The will m ust be signed, by the testa to r and attested by
three witnesses in presence of the testato r. A m arried woman m ay
m ake a will, b ut such will shall n ot deprive her husband of his tenaney
by the curtesy In her real estate, or of a life estate in one-half thereof
If they have had no issue born alive.

SYNOPSIS OF

T H E L A W S OF M ICHIGAN
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by H e n r y W ttnsch and E dwabd F . W p n s c h ,
A ttorneys a t Law, D etroit, Michigan.
( See C ard in A ttorneys’ L ist.)
A c k n o w le d g m e n ts of real estate instrum ents m ay be before one
of th e following officers: 1.—W ithin this S tate: Any judge, clerk
or commissioner of any court of record, notary public, justice of the
peace or m aster in chancery. The official should certify th a t 4 On
this day before me personally appeared ....................... .. to me known
to be the person or persons who executed th e foregoing instrum ent
and acknowledged th a t he (or they) executed the Same as his (or
their) free act and deed.” N otary’s certificate m ust show date of
expiration commission. Such instrum ents m ust have two subscribing
witnesses. 2.—In any other state, territory, or district of th e U nited
States: Same officials as described above or any officer authorized
by the laws of such state, territory, or district, or before a com­
missioner appointed by the Governor of this S tate for th a t purpose.
Any such instrum ent m ay be executed according to the laws of any
such other sta te or territory. If officer has no seal, certificate of the
Clerk of the county or district, or of the Secretary of S tate within
which taken shall be attached. 3.— In any foreign country: notary
public, or m inister plenipotentiary, m inister extraordinary, m inister
resident, charge d ’affairs, or commissioner or counsul of th e United
States, appointed to reside therein.
A c tio n s. Common law forms of pleadings are used, b u t in some
respects modified by sta tu te. Non-resident plaintiffs m ust give
security for costs.
A d m in is tr a tio n of E s ta te s : In probate court of each county.
Claims are passed on by judge of probate or commissioners appointed
for eaoh estate: within such tim e allowed by th e court, n o t exceeding
in first instance one year nor less th an four m onths; m ay be extended
not to exceed two years from date; the court m ay revive commis­
sion any tim e before estate is closed and allow further tim e three
m onths to examine any claim; an appeal to circuit courts from allow­
ance oi\ disallowance of any claim. All claims barred, n o t presented
before adm inistration is closed:—
A d m in is tr a tio n of intestate estates Is granted: lBt, to surviv­
ing husband or wife, or kin or grantee, or such one of them as judge
m ay appoint, or as they m ay request. 2nd, to one or more of th e
principal creditors. 3rd, to such other person as the judge m ay think
proper. Non-resident adm inistrators and executors appointed In
other states, territories, or foreign countries cannot sue as such in
this S tate w ithout procuring adm inistration in this S tate.
A ffid av its m ay be taken by any judge, m aster in chancery, clerk
of court, justice of th e peace, police m agistrate, n otary publio, or
circuit court commissioner. A ny oath authorized or required to be
made, w ithout the S tate for use in judicial proceedings herb, m ust be
authenticated by judge of a court having a seal, and th e genuineness
of such judge’s signature, existence of the court, and th a t such judge
is a m em ber thereof, certified by th e clerk of th e court under th e seal
thereof. If in any other sta te or territory, m ay be tak en before a
commissioner appointed by the governor of this S tate, or an y notary
public or justice of the peace authorized by th e laws of any such sta te
or territory to adm inister oaths therein.
In actions a t law affidavits of am ount due on open an d sta te d
acoounts, attached to and served w ith process as com m encem ent of
suit m ake a prim a facie case, unless denied by th e defendant's affidavit
filed and served with plea.

1598

BANKING AND COMMERCIAL LAWS—MICHIGAN

’ A lie n s. May Inherit or purchase and hold and convey personal
and real estate.
A r b itr a tio n . Com petent parties to an y controversy which is or
m ight be th e subject of an action a t law or su it In equity, m ay agree
to arb itrate, and judgm ent of an y circuit court rendered upon the
aw ard. No arb itratio n of claim of an y person to any estate In fee
o r for life in real estate.
A r re s t. By w rit of capias In personal actions In to r t and In actions
for money collected by any public officer; or upon prom ise to m arry;
also by w arran t allowed by any justice of th e peace or judge of a
court of record, under th e fraudulent debtor’s aot, when th e creditor
bas commenced su it or obtained Judgm ent and the debtor has disposed
of or concealed, or Is about to dispose of or conceal property liable to
execution, or th e debt was fraudulently contracted.
A s s ig n m e n ts for th e benefit of creditors are void unless m ade
w ithout preferences; m ust comprise all of assignor’s, property n ot
exem pt from execution. The circuit court In chancery has super­
visory Jurisdiction of such assignments.
A t ta c h m e n ts . W rits m ay be Issued from justice and circuit courts
on affidavit showing: debt due on express or im plied contract, and
either th a t th e debtor has absconded or Is about to abscond from
th e S ta te or has assigned or disposed of or Is about to assign and
dispose of his p roperty with in ten t to defraud his creditors; or Is a
non-resident of the state, or a foreign corporation. May issue from
Hie circuit court for debt n ot due b ut to become due, upon satis­
factory showing to the circuit judge, b u t in such cases judgm ent can­
n o t be taken u ntil debt is due. May Issue in actions of to r t against
non-residents In certain cases.
B a n k s . Incorporation of:—Any num ber of persons n ot less th an
live m ay associate to establish for a period not to exoeed th irty years,
commercial banks, savings banks, and banks having for both classes.
Capital required is graded—$20,000 to $250,000, according to popula­
tion of cities or villages where conducted. U pon filing articles of asso­
ciation, commissioner of banking departm ent and Secretary of S tate
Jjwue certificates of organization; board of directors chosen by th e
stockholders. No more th an th e legal rate of Interest in advance
■Ball be received; file correct list of stockholders w ith commissioner
of banking, and county clerk and report four tim es a year to be
published In newspaper where bank Is conducted. Commercial loanB,
n o t to exoeed 50 per cent of th e capital, on real estate securities, by
tw o-thirds vote of directors, except to secure debts due th e bank.
Savings deposits payable as directors prescribe; commercial deposits
payable on dem and. Banks combining commercial and savings
deposits eannot issue "post notes nor any bill or note or certificate
as money. Savings depositors preferred in distribution of savings
departm ent funds. Stockholders Individually liable equally and
rafcabty and not one for another to th e am ount of the p ar value of
■beck, for th e benefit of depositors. All transfers of property, and
paym ents of money after actual or contem plated insolvency to pre­
v en t legal application of assets null and void; to tal liabilities of any
borrower shall n ot exceed one-tenth p a rt of th e whole capital and
Burplus, m ay be increased to one-fifth by tw o-thirds vote of directors;
n o t to Issue certificates of deposit for borrowed money nor m ake
p artial paym ents on such certificates; n o t liable to depositors for payment of a forged or raised check unless notified
n ..........................
w ithin three m onths

after return of voucher,

AS shares of bank stock shall be assessed against their owners in
tine township, village, or city where th e bank is located, taxes not
paid b y stockholders, b an k ’s d u ty to pay.
T ru st deposit and security companies m ay be incorporated under
tire general laws of th e S tate applicable thereto. Seven or more
persons m ay associate to establish—capital graded frpm $100,000
to $5,000,000 according to population of cities where conducted;
deposit w ith th e sta te treasurer 50 per cent of the capital stock
la bonds or real estate mortgages w orth double the am ount secured;
powers such as are custom ary for tru s t companies. T hey cannot
do an y banking business.
C o lla te ra ls. Stocks, bonds or other personal property pledged
as collateral security for paym ent of money or th e perform ance of
wa& obligation, upon default m ay be sold a t public (or private sale
If so authorized by th e contract) to satisfy the debt; b u t before public
■ale, ten days notice m ust be given and served on pledger or legal
representative personally or by m ail; such sale m ust be between
nine o’clock forenoon and sunset, a t a public place in the township,
city, or village where held.
© o n d itio n a l S ales. Are valid between th e parties: If consignee
or purchaser, on condition title Is retained by seller, Is authorized by
tihe contract to sell, all such sales are valid. The consignee or pur­
chaser cannot m ake valid sales against the legal owner w ithout the
au th o rity of consignor or legal owner. (See Liens.) (See Frauds.)
C o n v e y a n c e s. Any person of full age or otherwise capable m ay
sonvey by deed any interest in lands, w hether in actual possession
or n ot. Ail grants and devises of lands to two or more persons create
estates In common; no jo in t tenancy, unless expressly so declared,
except such as are m ade in tru s t or to executors, and except such as
are m ade to husband and wife, who tak e as “ ten an ts by entirety.”
The words “ conveys and w arrants” in the deed describing the premises
an d specifying th e consideration, dated, duly signed and acknowledged
by grantor are sufficient to convey title In fee simple and to w arrant,
th a t g rantor an d his heirs and personal representatives is seized of
th e premises, has good right to convey same, guarantees quiet pos­
session thereof, and th a t he will W arrant and defend the title against
all lawful claims. The words “ conveys and q uit claims” duly signed,
sealed and acknowledged by grantor are sufficient to convey grantor’s
Interest. The words “ mortgages and w arrants” and duly described
premises, specifying “to secure th e paym ent” and reciting th e sum
lo r which m ortgage Is given and the notes and other evidences of
d eb t secured thereby, m ortgage being dated, signed, sealed and
acknowledged by grantor, Is sufficient and w arrants perfect title In
th e grantor and against all previous Incumbrances; om itting the
word “ w arran ts” sufficient, b u t w ithout an y w arranty. Dower and
hom estead rights n ot waived unless wife joins In th e m ortgage. No
hom estead rig h t will avail against the m ortgagee If there is no wife,
Bor if wife joins In the m ortgage. Married women of full age joining
w ith husbands in any deed, mortgage, power of atto rn ey or other
writing, shall be bound in respect to th eir own title.
© corporations. Banks, mining, m anufacturing, insurance—fire,
m arine, accident, burglary—printing and publishing, m anufacturing
and m ercantile, 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 S tate general laws; required
to file with, th e secretary of state, articles of association.
Business Corporations. Three or more persons m ay organize. One
half of capital m ust be actually subscribed and a t least 10 per cent
either in money or property m ust be paid in; If in property same
m ust be for th e purpose of th e business, and described and its' value
specified in th e articles. Stockholders vote in person or by proxy,
Bach share has as m any votes for directors as directory num bers,
and th e aggregate vote m ay be distributed for one or more of direc­
tors. May issue preferred and common stock of the p a r value of
$10 or $100. Preferred entitled to dividend n o t to exceed 8 per cent
Quarterly, sem i-annually or annually and if n o t paid be accum ulated.


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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 for labor.debts; they make all by-laws for corporation. Foreign
corporations organized under the laws of any other state of the United
states or of any foreign country, unlawful to carry on business In
this state until certificate of authority procured from secretary of
State; not capable of making valid contracts In this state until author­
ized to carry on business; unlawful for any person to aot as agent of
until authorized to do business. Sales of goods or merchandise by
the right of Inter-state commerce not affeoted by Btate laws.
C ourts. T erm s a n d Ju risd ic tio n . Circuit courts, holding two
or more terms annually In each county, have original jurisdiction In
all cases of law and equity wherein the amount In controversy Is $100
and upwards; and have appellate jurisdiction from justice of the
peace probate courts and other Inferior tribunals. Justice courts in
each county have jurisdiction of cases a t law involving from $100 to
$500. In Grand Rapids Is a "Superior Court’’ for civil cases, limited
to parties resident of the city. Probate courts In each county have
jurisdiction of estates of deceased persons and testamentary trusts.
Supreme court has final appellate jurisdiction from circuit, munlo?
lpal and recorders’ courts.
D ays of Grace. Abolished.
D e p o s itio n s . Testim ony of any witness w ithout th e S tate or
more th an fifty miles from th e court m ay be taken de bene esse,
before an y judge of any sta te or of th e U nited States, or of any foreign
oountry, or before any circuit court commissioner in this or any other
sta te or of th e U nited States, or an y commissioner of this S tate, any
consul or consular officer, justice of th e peace, officer or n otary public
authorized to adm inister oaths in th e sta te or county where taken
and not interested as atto rn ey or counsel or in th e event of th e cause;
reasonable notice given In writing by p a rty or his attorney proposing
to take, to opposite p a rty or his atto rn ey of record, stating names of
witnesses, tim e and place of taking and official before whom to be
taken. Commissions to take depositions of an y witnesses m ay be
issued by d ro u lt court wherein th e suit is pending or by th e Judge or
register thereof, or by a Justice of th e peace in a su it before him on
w ritten interrogatives. Fees for taking, certifying, sealing and for­
warding $2; for each 100 words in deposition ten cents and copies
three cents. Each p a rty pays for his own exam ination o r cross
exam ination in the first instance.
D e s c e n t. Real estate and personal property of in testate after
paym ent of debts and adm inistration expenses and allowances, as
follows:
Real P roperty. One-third to widow, rem aining tw o-thirds to his
issue; if no widow th e 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 fath er and m other in equal shares,
if only one living to th e survivor alone. If surviving husband or
widow and no issue, one-half to such survivor, rem ainder to father
and m other or their survivor. If no issue or parents, husband or
widow, equally to brothers and sisters and th e children of deceased
brothers and sisters; if none such relatives, to next of kin in equal
degree through nearest ancestor; if any unm arried child dies under
age, his or her inheritance from any parent, to other surviving children
of sam e 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 S tate. Illegitim ates heir to m other; dying intestate
estate descends to m other or her relatives if she be dead; become
legitim ate by parents. Interm arriage or fath er’s w ritten acknowledg­
m ent. The foregoing provisions for th e widow are in lieu of dower
and hom estead right unless one year after adm inistration granted
she applies for assignm ent of dower and hom estead in which case
her interest in deceased husband’s lands is lim ited to th e dower and
homestead right and th e residue shall descend as above provided for
th a t portion n ot taken by her.
Personal E state. Residue— one-third to widow, tw o-thirds to
children or issue by representation; one child; one-half to child and
one-half to widow; no widow or child; to all lineal descendants equally.
If widow and no children or issue, to widow, n ot exceeding $3,000;
estate excess.of th a t; one-half excess to widow, o ther half to surviving
parents, and if none such to brothers or sisters; and none such, afl
such excess to widow. Married women intestate, one-third to hus­
band, tw o-thirds to her children or th eir issue by representation;
only one child or issue of deceased child; to husband and such child
equally; if no child o r issue of deceased child, one-half to husband
and other half to surviving parents, and if none; to brothers or sisters
or issue of them and if none, all to husband. In an y other case same
as for real property. E states by courtesy abolished.
D ow er. Wife entitled to use of one-third p a rt of all lands owned
by her husband as estate of inheritance any tim e during m arriage.
No dower as againsj; mortgages for purchase price, or m ortgages m ade
before m arriage, except in surplus. Must exercise option to tak e
dower in lieu of rights under will or sta tu te w ithin one year after
adm inistration; residing in this S tate and eighteen years of age and
upwards m ay b ar by joining in husband’s conveyances and m ort­
gages or by deed alone to one who has husband’s title, in ten t to bar
being expressed; or by jointure secured as bar.
E x e c u tio n . May issue to any county a t once, unless stayed after
judgm ent in circuit court, in Justice courts, expiration of five days;
n ot liens on real estate or personal property u ntil levy by proper
officer. Real estate is sold w ithout appraisem ent to the highest
bidder, except hom estead, to determ ine excess of value above $1,500
redem ption claim. D efendant or his heirs or assigns m ay redeem
within twelve m onths, his Judgm ent creditors and others having valid
liens w ithin fifteen m onths from date of sale. Execution against the
body m ay be issued on all judgm ents in actions of to rt. Personal
property levied on, after setting off exemptions, m ay be sold on six
days’ notice a t public sale, to highest bidder to a sufficient am ount to
satisfy the debt and costs; no redem ption after such sales. Execu­
tions from justice courts do n ot run against real estate.
E x e m p tio n s . Hom estead—selected b y th e owner and occupied
by him ; n ot exceeding forty acres of land and dwelling thereon; o r one
lot w ith dwelling thereon within any recorded tow n p lat or city or
village n ot exceeding in value $1,500. Same cannot be alienated or
incum bered w ithout consent of wife or sold on any execution or any
other final process from any court, unless appraised to exceed th e
value of $1,500 and th a t am ount is paid or realized on sale under
such process. E xem ption of hom estead continues during its occupa­
tion by the widow or m inor children of deceased person who when
living occupied th e same.
F ra u d . Criminal fraud— obtaining th e signature of any person,
firm, or corporation with in ten t to defraud fraudulently issuing or
selling or duplicating and disposing of any stock, scrip, or evidence of
debt of an y b a n k ‘or other incorporated com pany of this S tate; issue
of any false receipts by warehousemen, m erchants, or their agents—

BANKING AND COMMERCIAL LAWS—MICHIGAN
receipt; or to wrongfully dispose'of or convert property to their own
use after Issuing receipt; wrongfully removing or disposing of any
nersonal property by any agent delivered upon written agreement or
Instructions; wrongfully to dispose of property covered by chattel
mortgage by mortgagors or of property held by contract of purchase
without legal title by such purchaser or of property held under any
lease by lessor. For any officer or stockholder of any bank or any
other person for such bank; to sign, issue or knowingly put in circula­
tion any note or bill of any such bank, before the capital stock Is
Daid in, or before the president and directors thereof have complied
with the law; for any officer or agent of any bank knowing such bank
to be insolvent or in contemplation of insolvency, or for any assignee
of the property of such bank to sell or dispose of any money or property
of such bank with intent to defraud, delay or hinder creditors thereof;
or for any agent or person to fraudulently obtain or dispose of any
money belonging to any insurance company organized in this State.
Frauds—Statute of. No executor or administrator is liable on
any special promise to answer damages out of his own estates.
F ra u d , C iv il. Sales, transfers and assignm ents of stocks of goods,
wares merchandise and fixtures in bulk pertaining to conduct of any
business, otherwise th a n in ordinary course of trade of seller, etc,,
void as against creditors, unless the seller, etc., five days before sale,
make inventory o f th e goods and cost price to seller of each article
and unless th e purchaser dem ands from seller list of names and
addresses of creditors an d his indebtedness, and within five days
before taking possession and paym ent notifies every creditor of such
sale.
G a r n is h m e n t. Process m ay issue in any action brought in any
justice court or circuit court on contract expressed or implied, judg­
ment or decree, to hold w hatever property any person m ay own or
have belonging to th e debtor. Bills of exchange and promissory
notes due in th e garnishee’s hands a t th e tim e of serving summons
are gam ishable. P roperty, real or personal, things in action, equitable
interests, held by fraudulent transfer from th e debtor and any prop­
erty liable to execution or to the paym ent of the debts of th e debtor
In the garnishee’s hands m ay be recovered; wages of any householder
not more th an $30 an d less th an $8 for his personal labor, and of any
other person for labor n o t more th a n $15 and not less th a n $4; and
benefits payable by fraternal beneficiary societies, shares in building
and loan association of an y debtor, except as to one having a home­
stead exem ption, are exem pt from garnishm ent.
H o lid ay s, (Legal) Jan uary 1st, February 12th, F ebruary 22nd,
May 30th, Ju ly 4th, first M onday in September, Thanksgiving D ay
as specified by th e Governor of State, December 25; every Saturday
from 12 o’clock noon to 12 o ’clock m idnight, all National, State,
County, or C ity election days.
H u s b a n d a n d W ife. If sued together she m ay defend and if
either neglect to defend th e other m ay be ordered to defend for both.
If he deserts her she m ay be authorized by the probate court to prose­
cute or defend in his nam e. If either wrongfully retains the o ther s
property, acquired before or after m arriage, th e owner m ay sue for
same as if unm arried. N either liable for th e debts of the other before
or after m arriage, n or earnings or property of either nor the income
thereof; nor shall either be liable to m ake compensation for labor
or services rendered for th e other. E ither m ay constitute the other
an atto rney in fact to dispose of property. Expenses of fam ily and
children’s education are not chargeable upon th e property of the wile
but are chargeable against th e husband and he m ay be sued therefor.
I n te r e s t. Legal rate 5 per cent b u t by w ritten agreem ent m ay be
charged n ot to exceed 7 per cent. Forfeiture of all interest is penalty
for usury. W hen an y Installm ent of interest upon any note, bond,
mortgage or other w ritten contract shall become due and remains
unpaid, interest is allowed on such installm ent from th e tim e it became
due a t same rate specified in th e obligation or a t the legal rate. Legal
rate collectable on all m oneys due on any w ritten obligations and on
all moneys due on all contracts express or implied, whether verbal
or w ritten; and on settlem ent of accounts from day of ascertaining
balance due; and on judgm ents from day of entry; and on verdicts of
Jury from date to d ate of en try of judgm ents thereon. In computing
time of interest and discount on negotiable paper, a m onth means
a calendar m onth and a year a calendar year of twelve m onths.
J u d g m e n ts of courts of record are n ot liens on real estate or
personal property u n til by levy thereon of execution issued from the
courts upon such judgm ents. Liens under execution levied upon
real estate exist five years from and after the levy. Judgm ents expire
by lim itation 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. Judgm ents of the justice of the
peace m ay be entered In the circuit courts on transcript duly taken
to th e circuit court an d thereupon become judgm ents of such circuit
courts.
L ie n s. Any person, who pursuant to a contract w ith any owner,
part owner or leasee of an y land, furnishes labor or m aterials in the
construction of a building, etc., on such land, shall have a lien on such
structure an d land to th e extent of one quarter section or if in a city
or village, th e lo t or lots upon which such structure is situated. And
any sub-contractor, who furnishes m aterials or labor in carrymg toreward or com pleting such contract shall have a lien upon such building
and land to th e ex ten t of th e interest of such owner, etc. Any person,
artisan, or tradesm an for labor and skill applied upon any property
delivered for th a t purpose shall have a prior lien for am ount due lor
such labor. Hotels, boarding houses and lodging houses have a lien
upon baggage and other valuables of guests, boarders or lodgers tor
accommodations. A ny person keeping and caring for domestic ani­
mals Intrusted to them for th a t purpose have a lien for proper charges.
L im ita tio n o f S u its . Judgm ents of courts of record and sealed
Instrum ents ten years, justice court Judgments six years; accounts
and notes an d other simple contracts and for taking, detaining or
injuring goods and chattels, six years from the date the action accrued;
revivor; p art paym ent, or promise in writing to pay. Absences from
toe S tate deducted from th e period of lim itation. Mortgages fifteen
years after due or after last paym ent thereon. F or tre sp a ss^ on
lands, assault and b attery , false im prisonm ent, slanderous words or
libels and mal-practloe 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 th e claim arises against executors, guardian s
or sheriff’s deed; five years where th e defendant claims and is in pos­
session of lands under deed m ade by auditor general, of this S tate lor
taxes; and by minors and others under legal disabilities three years
after removal of such disabilities; in all other cases fifteen years.
L im ite d P a r tn e r s h ip s . May consist of one or more general and
one or more special partners. Specials contribute specific
of capital in cash or property a t cash value, and if .actually paid m
not liable for firm’s debts in excess of such special capital, uenerai
partners tran sact th e business of the firm.
.. .
M a rrie d W o m e n . May m ake contracts In respect to their
property and m ay hold and enjoy, and have the
remedies regarding th eir property as if unm arried. They
on business in th eir own names w ith their own property by consent
of th eir husbands; cannot enter into partnership w ith husband or
any other person and become liable to r the firm
women’s contracts to pay or to become liable tor debts of husbands or
other person voidable, m ay however charge their real ® ^ * e
sonal property to secure such indebtedness by deed, m ortgage or


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Federal Reserve Bank of St. Louis

1599

contract. M arried women are entitled to have an d to hold their
earnings m ade by their own personal effort, and m ay m ake any con­
tracts relative thereto.
M o rtg a g e s on real estate, executed and acknowledged to e same
as deeds; m ay be foreclosed under power of sale by advertisem ent
or in circuit court in chancery of the county wherein the property
is situated. T rust deeds n ot in custom ary use b u t m ay be m ade and
_£
executed and will be treated as mortgages.
fe .
Chattel m ortgages and bills of sale; intended as security by m ortgagor, signed and delivered to the mortgagee, sufficient between the
parties, b ut void as to creditors, subsequent purchasers and encum­
brancers in good faith and w ithout notice, unless such m ortgages and
bills of sale or true copies are filed in th e city or township clerk a office
where m ortgagor resides, or if non-resident of S tate, in city or town­
ship where th e property is situated; and unless affidavit of m ortgagor
or of some one for him having knowledge of th e facts Is annexed to
the m ortgage or bill of sale, showing consideration is actual and
adequate and In good faith. W ithout such affidavit officers forbade
to receive and file such mortgages; cease to be valid against creditors,
subsequent purchasers, and encum brancers in good faith, on expira­
tion of year from filing date, unless renewed within th irty days next
preceding expiration by affidavit of mortgagee show inghis interest,
etc., filed ana annexed to th e m ortgage in said clerk s office; likewise
each succeeding year while th e m ortgage exists.
N e g o tia b le I n s t r u m e n t s . A promissory note is an unconditional
promise in writing to pay a sum certain in money, on dem and, or a t
a fixed and determ inate future tim e, to th e order of a specified person
or to bearer.
.
j
HUB
A bill of exchange is an unconditional order of one person to another
requiring the drawee to pay to a certain person, or order, or bearer on
dem and or a t a fixed or determ inate future tim e a certain sum of
money. May be payable in installm ents and contain provisions th a t
on default the whole sum of money shall become due w ith exchange,
fixed or current rate, interest and atto rn ey ’s fees for collection. May
authorize sale of collaterals and confession of judgm ents. If it reads
“ I promise to pay,” all m akers are jointly and severally liable.
Must not be payable upon contingency. Cannot waive exem ption
from execution. Need not specify “ for value received nor place
where drawn or payable. If issued, accepted, or indorsed when over
due is payable on dem and. May be payable to two or more payees
Jointly or one or more of several payees. W ant or failure of con­
sideration, a defense against one n o t a holder In due course, partial
failure a defense pro-tanto. One n ot a party, or the payee of the
paper placing a signature in blank on the paper before delivery becomes
an endorser. Indorser engages on due presentm ent' the paper shall
be honored and th a t he will pay to holder or any subsequent Indorser,
who m ay be compelled to pay; where m atu rity falls on Sunday or on
a holiday, paym ent due on th e next business day; b u t where all of such
day not a holiday m ay if payable on dem and be presented before noon.
Fraud in procuring signatures and delivery defense against any holder.
P resentm ent not necessary to charge anyone prim arily liable. If
n ot payable on demand present on the day due; if on dem and present
within a reasonable tim e after issue; bill of exchange payable on
dem and present reasonable tim e after last negotiation.
Fraudulent o r m aterial alterations do n ot affect th e original Instru­
m ents in the hands of innocent holder in due course.
Unconditional promise in writing to accept a .b ill of exchange,
given before or after drawn, valid in favor of all who take It upon
faith thereof for value; holder m ay decline qualified acceptance; if
he takes qualified acceptance, drawers and indorsers are discharged.
P rotest of foreign bills of exchange m ay be m ade by a n otary public
•or any respectable resident of the place of paym ent in the presence of
two or more creditable witnesses; drawee Is n ot liable unless he accepts.
Check or a bill of exchange on a bank payable on dem and, m ust be
presented reasonable tim e after issue, and if dishonored notice m ust
be given or drawer is discharged to extent of loss caused;does n ot
operate to assign any p a rt of draw er’s funds; bank is n o t liable unless
it accepts or certifies. If holder has check certified drawers and
Indorsers are discharged.
The present negotiable instrum ents law of Michigan took effect
Sept, 16, 1905, and repeals all acts or p arts of acts inconsistent w ith
its provisions; b ut does n ot apply t o instrum ents m ade prior thereto;
m aterially changes the law in this S tate and should receive special
exam ination in every doubtful case.
P o w er of A tto r n e y . Almost every act th a t any person, firm or
corporation m ay perform, m ay be performed by an attorney in fact.
Conveyances, mortgages, or leases for more th a n three years term
by attorney in fact, the power of attorney m ust be in w riting signed,
sealed and acknowledged same as a deed of lands, to be adm itted for
record or to proof thereof.
P ro b a te L aw . (See Adm inistration of Estates.) '
P ro te s t. (See Negotiable Instrum ents.)
1
R e p le v in . Goods or chattels wrongfully taken or detained m ay
be replevined by owner or p a rt owner or p a rty entitled to possession.
Affidavit of plaintiff or agent necessary for issue of w rit. If from
circuit courts plaintiff required to give bond with sufficient sureties
to the officer within tw enty-four hours after seizure and appraisal of
the property which m ust not be delivered to plaintiff w ithin j o rtyeight hours; and in the m eantim e if the defendant shall give sufficient
bond to the officer he shall return th e property to the same person
from whom he took it; in th a t case if plaintiff recovers he m ay reoover
on th e defendant’s bond: if he fails defendant m ay recover on plain­
tiff’s bond according as the judgm ent m ay w arrant. In justice courts
bond with sufficient sureties m ust be given and filed in double value
of the property before w rit issues. . .
T ax es. S tate and county payable every year after December 1st,
delivered to county treasurer March 1st, thereafter, and if delinquent
bear interest 1 per cent per m onth. R eturned to auditor general of
S tate, if n ot paid, and by him enforced by foreclosure in chancery in
every county, and the taxable property sold under decree of toe
court by county treasurer each parcel for th e am ount of taxes and
charges against same: redeemable one year thereafter and does n ot
become absolute until proceedings taken by purchaser for w rit of
assistance, which m ust be instituted within five years b y service of
w ritten notice upon owners six m onths 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 w rit of
assistance and possession unless redeemed pending th e notice by
paym ent of double the am ount paid by purchaser and $5.00 for each
parcel redeemed. City taxes are governed by charter or by the
general act under which cities and villages are organized.
W ills. C odicils. Every person of full age (tw enty-one years) and of
sound mind m ay m ake; m ust be in writing, signed by te sta to r or by
some person in his or her presence duly authorized by him or her and
attested and subscribed in his or her presence by two or more witnesses
com petent as such a t th e tim e. If one of th e subscribing witnesses
shall testify to the execution of th e will in all particulars and testa­
to r was of sound m ind a t th e tim e will was m ade, th e court m ay
adm it the will, in case no person appears to contest it; if none of
th e witnesses reside in the S tate a t the tim e of proving the will, the
court m ay adm it th e testim ony of other witnesses to prove testa to r’s
sanity and execution and proof of th e signature of te sta to r and sub­
scribing witnesses. P robate of will conclusive of its due execution
and cannot be assailed collaterally. Foreign wills, duly adm itted to
probate w ithout the S tate, m ay be adm itted and recorded in any
county of th e S tate in which testa to r left real or personal estate by
duly filing, an exemplified copy of said will and of th e record adm itting

1600

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

^ nuPCupatIve will m which the value oi the estate
b7 "e llo
w e d 1 d^1fu°ina^seh
?300, dul7
by tearing,
two witnesses,
may
“ jowea.
wills may bed revoKea
byproved
burning,
cancelling
a tl^ r wtitinS
r^voki ns same b7 testator, or by some
ter
R e ste d , and subscribed In the manner provided
lor execution ol wills but shall prevent revocation Implied by law.

with Intent to defraud or delay his creditors, or to avoid th e service ni
a summons or keeps himself concealed therein with like intrant or6!?!
secre*®d, or disposed of his property with Intent to delay
or defraud his creditors or is about to do so.
uelay
Three or more persons m ay Incorporate as a bank. Capi­
tal required is $10,000 in towns of 1,000 or less population • $ 1 5 oon
to“0« to 1.500; $20,000 in towns of 1.500 to 2 000;and
H “*0 0 0 towns exceeding 2,000 population. Capital stock m ust be
bank can, do business. Stockholders are
fo,r debts of bank ln an additional am ount equal to
+ tock, ownpd by them , and this liability continues one
profits m ust be placed to Surplus

&£3S5S3SSS53.V"

01“» “ ‘>•4“ “ «■»»¡>A H

Every bank m ust m ake to th e superintendent of banks n o t less than
reports eacb year which m ust be published. Liabilities toa* bank
fhArSn ?i61hni+’i o o ^ o fatlo n or firm, for money borrowed, including
.liabilities of th e several members thereof, shall a t no time
exceed 15 per cent of Its capital and surplus. I t m ust have a reserve
equal to one-fifth of all Its m atured or dem andable liabilities, one-half
th ,e rem alnder m ay be bllances due from
tSfe
case of Insolvency or violation of the banking laws.

banks may take Possession, and apply to the

ttv i^ A p r il^ f^ f iiV T he Unlforin Bids of Lading A ct became effecwiih!niath« as?ie/ 0 r<i?ejTinf Property for transportation between points
^vibin th e State, liable for loss, dam age or injury caused by it or
other carrier en route, and all contrary provisions in Bill of Lading
1 S!i l a t t o i j y t o ^ s.il ? es;

SYNOPSIS OF

T H E L A W S OF M IN N ESO TA
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by D ubment , M oobe , O pp en h eim eb &
H atjpt, A ttorneys a t Law. S t. Paul. (See Card In
A ttorneys’ List.)
i w m ^ B A S« ^ n t L m ay 22 certified by th e following officers:
„ „thin th e S tate by a resident Judge, clerk or deputy clerk of
an y court of record therein, a notary public, justice of th e neace.
ft««?« ci,*y„or, pillage clerk, or recorder, court commissioner, register of
^ un,t y .a,u dltor- or toeir deputies, county commissioner or
b v ^ l n d g ^ n f te> f i ^ ,Ure- 2' , ° u* of tb e s ta te b u t in th e U nited States
th e supreme, circuit, or district courts of th e United
any court of record of any state, territory, or district
Jb® cle^k or a deputy clerk of any such court, a notary, a justice of the
^ th a t n m Do s ^ m\SSlfn eLrBSi!inted
»be governor of this S tate

tatives of such officers. The form ’of the certiflcate m ay be. ^ O n
....................... day of, ................. .......... 1 9 ,.
before m«
a n a lly appeared................... to me known to be the’person described in
^ d who executed th e foregoing instrum ent and acknowledged th a t'h e
tta m a T b06
e h, ' iOn
t * Itnis
h S U• s• •.free,?
Ci a?
d deed; ”9 .^before
case of
. .d ay
o f...........1
m©corporation
aoneareri
4 :\ B - *0 m e personally known, who being by m e dulyPP worn
president (or other officer) of (name of corpo’’ th a t th e seal affixed to th e foregoing instrum ent is th e corSi>Ib«hi1Sifa’i>f)ifv } d corP °ration and th a t said instrum ent was executed
S d t a M Af s5 ld corporation by authority of its board of directors,
if^ d A. B acknowledged said instrum ent to be th e free act
rion
Ifi ^ d e outside
e S tate
impresn o n of tb e ««n.i,<
officialir S^ri
seala tl?n;
of thl,e certifying
officerthroust
be the
affixed
or
attached th e certificate of th e clerk of a court of record
dIs(?<Sijln w ^ c b it is m ade under his seal th a t the
signature of th e certifying officer is genuine.
i7 vie -4d^sii£ c^ 01} between actions a t law and suits In
ISSS® t^bollshed . There is only one form of action. I t is called
a civil action and m ust be prosecuted In th e nam e of th e real Dartv
t r a s t 'S
th a t executors, adm inistrators, trustee of an express
andv, Persons expressly authorized by sta tu te m ay sue w ithout
joining th e person for whose benefit th e suit is brought.
E s ta te s . E states of deceased persons are
adm inistered in probate courts of wbicb tbere is one in eacb county
presided over by th e probate Ju<jge of th e county.
county
■to granting letters of adm inistration preference Is given: 1 To
P1" ,ne:si
bln or such suitable person as they
9 *i_pbher of them select. 2. If no application is m ade for th irty
days after d eath of intestate, to principal creditor or creditors or
and lf deceased was native of foreign c o S t ^
«S11*,?1 ° r other representative of th a t country residing in this
State, or to such com petent and suitable person as he m ay select.
i?*tters the court m akes an order lim iting the time
ndthin which creditors m ay present th eir claims. This tim e m ust
¥nr
°5 E?ore th an twelve m onths; b u t m ay be extended
9?use to a date n o t more th an eighteen m onths after notice
th
e
tim
i
n?i?itPrtd
™
&rooi mby
fffldavit
th a tofthere
are no
debts
th e tim e lim ited m ayg ?ben three
onths.
Notice
the order
is given
onc? eacb week for three weeks in a newspaper
P f p P P M P l Claims n ot presented w ithin tim e lim ited are barred
Non-resident executors and adm inistrators m ay sue in this S tate.
A lien s. (See right to hold property.)
. j i J b ltra tI< ln '
controversies which can be th e subject of a civil
m ay, be subm itted to one or more arb itrato rs lo r decision,
except a olalm to an estate ln fee or for life ln real estate.
A rre s t. There Is no arrest for debt.
S tatu tes relating to assignm ents for th e benefit of
o fl8 9 8
1 ln iorce excePt as affected by the U. S. B ankruptcy Act
P ractically th ey m ay be said to be superseded b y th a t act..
A t ta c h m e n t. Before allowing a w rit of attachm ent, th e court
bond 111 ^ 0 sum of a t least $250, and
au a ® dayl1; of th e plaintiff, his agent or attorney, (l) T hat the debt
was fraudulently contracted or (2 ) th e defendant is a foreign corpora­
tion or non-resident or (3) has departed from th e S tate as he believes


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Federal Reserve Bank of St. Louis

Ev®ry m ortgage of personal property which
i>A«?i«™22Pi2.paided .by im m ediate delivery ana followed by actual and
°L po8sessI? n i® void as to creditors and subsequent
fn'ithban?£Lfiud mortgagee« in good faith, unless it is m ade in good
faith, attested by two witnesses, acknowledged and filed with the
register of deeds of the county in which th e m ortgagor resided at
8j®
°£.its execution, if a resident of th e State, or of th a t in which
the property was then Situated if a non-resident. I f the mortgagor
resides m St. Paul, Minneapolis or D uluth or is a non-resident and
ritv ri?rifrnf
to®^* the m ortgage m ust be filed w ith the
n ^ H ™ r^=0!Lsucb-city
of the register of deeds of th e county,
P 'i P j ^ 't e s or copies certified by any officer w ith whom th e mortgage
Hta
fll?d, m ay be filed in other places wherein any part of
was ®ltu a ted when , the sam e was made. As against
ugor an + subsequent purchasers and mortgagees
from
«2” doi ? n ot continue beyond the term of six years
J
Kihni? ^ m ortgage unless the indebtedness is not
and payable by its term s, in which case it continues two years
after the m atu rity of the debt and no longer.
glven by; a m arried m an or woman on property
e x e m p y ro m execution m ust be executed by both husband and wife
A,,ii0Hntyey. ail ce8- Beeds an d m ortgages of real estate m ust be exeioi tw,° shbscribing witnesses and to entitle them
rv„i?,22rd m ust be acknowledged by the person executing th e same.
«Jadie 0ut of th e S tate m ay be executed as above, or
according to the laws of the place of execution.
i«=?<li,p o r v iio n s ; P ay be organized by any num ber of persons, not
ThA
A?^iibie PurPose of engaging in any lawful business.
,am ount of capital stock shall ln no case be less th an $10,000,
divided into shares of n o t less th an $1.00 or more th an $100. The
m ust sign and acknowledge a certificate specifying; l.
the
8rea®ral nature of business and principal place of transacting
f j Period of its duration if lim ited. 3. Names and
m
^ n e^iCe+ °*. incorporators. 4. ln w hat board managey®^ed’ dai e of annual m eeting a t which such board shall be
elected, nam es and addresses of persons composing board until first
n n w h « ' . 5k -Amount of capital stock, how the same is to be paid.
?,°mber of shares and p ar value of each, and if more th an one class, a
*tio n ’ a1 d J'?r2a? oi issue an d m ethod of voting of each. 6.
T h fin A ^ ^ a t? L ° f iin^ ebt1ildR?ss to wbich corporation shall be subject.
ls PediW lth the secretary of sta te and with th e register
in ^ b lch the principal place of business Is
located and published in such county two successive days in a dailynewspaper* or two successive weeks in a weekly.
r,„H^®Ty stockholder in any corporation, except those organized for the
p m ? 0?6 ° r carrying on a m anufacturing or m echanical business is
liable to creditors of th e corporation in an am ount equal to th e par
value of th e stock owned by him.
y
Corporations. Every foreign corporation organized for
pecuniary profit before It can tran sact or continue business in this
b tate, acquire, hold or dispose of property or bring suit here must
appoint an agent residing in th e State, authorized to accept service
or process, and m ust file w ith the secretary of sta te an authenticated ,
copy of such appointm ent and of its charter and a verified statem ent
showing th e proportion of its capital stock represented by its property
and business m this State, and upon th a t it m ust pay a fee. This act
does n ot apply to exclusively m anufacturing corporations, traveling
salesmen soliciting business for non-resident corporations; nor to those
engagea only m th e business of loaning money or Investing ln securities,
nor to those organized to raise and Improve live stock, cultivate farms,
can fruits or vegetables, nor to those whose sole business is transpor­
tation of freight or passengers by w ater.
p
C o u rts . D istrict courts hold one or more term s a year In each
organized county, have original Jurisdiction in all civil actions a t law
and in equityj and in all crim inal cases where the punishm ent exceeds
three m onths Imprisonment or a! fine of more th an $100.
.
court has appellate jurisdiction in all cases* b u t there
is no trial by ju ry in th a t court. I t has original jurisdiction in such
remedial cases as are prescribed by law.
P robate courts have exclusive Jurisdiction of m atters connected
with the settlem ent of estates of deceased persons, minors, and Insane
organized ^ u n t y are beld 011 toe first Monday of each m onth in each
e,xlst in certain cities, and are courts of record with
lim ited jurisdiction In civil and criminal actions.
Justices of th e peace have no Jurisdiction in civil actions where the
am ount involved exceeds $100.
D ay s o f G race are abolished.
D e p o s itio n s m ay be taken a t any place within or w ithout the
S tate upon notice in writing, sta tin g the reason for taking th e «a™»,
the tim e and place, and giving the opposite p a rty one day for prepa­
ration, and one day for every 100 miles, exclusive of Sundays and
the day of service, before an y officer authorized to adm inister oaths.
D e s c e n t a n d D is tr ib u tio n of P ro p e rty . H om estead descends
to s ^ rtiv in g spouse for life, rem ainder to children and Issue of deceased
children. If no children or issue of deceased child, then to surviving
spouse.in fee, exem pt from debts n ot a valid charge thereon a t tim e of
intestate s death. A fter paym ent of debts and certain allowances to
toe surviving spouse out of the personal property, th e residue of the
estate descends as follows: 1. One-third to the surviving spouse,
balance in equal shares to children and lawful Issue of deceased child
by Jb=bt of representation. 2. If no surviving child, or lawful issue
of deceased child, the whole estate descends to surviving spouse if

BANKING AND COMMERCIAL LAWS—MISSISSIPPI
„„v a . i f no Issue or surviving spouse, to fath er and m other In equal
■hares, o r It b u t one survive, to such survivor. 4. If no surviving
i*sue. spouse, f a th e r or m other, In equal shares to brothers and sisters
and lawful Issue of deceased b rother o r sister. 5. ■If no Issue, spouse,
tether, m other, brother, sister, or living Issue of deceased brother
or sister, to n ex t of kin. In equal degree, b u t those who claim through
nearest ancestor preferred to those claiming through ancestor more
remote. 6. If uo spouse or kindred, to th e S tate,
b o w e r Is abolished.
E m p lo y ers l i a b i l i t y A ct, Effective since April 24, 1913.
E x e c u tio n s Issue from district courts any tim e w ithin ten years
after judgm ent and m ay run to any county where judgm ent is docketed
are returnable in six ty days and m ay be renewed for sixty days a t a
time on request of judgm ent creditor or his attorney. Personal prop­
erty is sold on ten days’ posted notice; real estate on six weeks pub­
lished notice, and subject to redem ption by judgm ent debtor or his
assigns w ithin one y ear from d ate of sale.
E x e m p tio n s . Hom estead outside of Incorporated m unicipality
may include eighty acres. If in Incorporated place containing less
than 5,000 inhabitants, its area shall n ot exceed one-half acre, and In
larger Incorporated places one-third of an acre w ithout regard to value.
Family pictures, library, musical Instrum ents for use of family, wear­
ing. apparel, beds, stoves, cooking utensils used by family, other house­
hold furniture n o t 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, th e wool therefrom raw or m anufactured, food for
such stock for one y ear’s supply, one wagon, cart or dray, one sleigh,
two plows, one drag, and other farm ing utensils not exceeding $300 in
yalue, provisions for debtor’s family for one year’s support, tools kept
for purpose of carrying on trade, and stock m anufactured in whole or
in p art by debtor n o t exceeding In value $400; library of professional
man- presses, type, an d tools of publisher of newspaper not exceeding
$2,000, and his stock In trad e n ot exceeding $400; watch, sewing
machine, typew riter, bicycle, seed for use of debtor for one season not
exceeding certain am ounts; library and apparatus of college or school;
money payable to wife or child from insurance on life of deceased hus­
band or fath er n ot exceeding $10,000; money or relief from benefit
association; money from insurance on exempt property; wages not
exceeding $35 for services rendered during preceding 30 days; b u t all
wages paid and earned within said th irty day period shall be con­
sidered a p art of (or all) of said exemption (chap. 202, Laws 1915.)
H o lid a y s. Ja n u ary 1st: February 12th and 22d; Good Friday;
May 30th; Ju ly 4th; first Monday In Septem ber; Tuesday after first
Monday in November, each even-num bered year (election day), ana
December 25th are legal holidays. Thanksgiving day is so far th a t
negotiable instrum ents or contracts due th a t day are payable next
succeeding business day.
I n te r e s t. Six per cent Is legal rate, b u t by special contract any
rate not exceeidlng 10 per cent m ay be exacted. Usurious contracts
are void.
J u d g m e n ts m ay be entered by default In district courts a t expira­
tion of tw enty days after service of summons. W hen docketed in those
courts they become liens upon all real estate of th e debtor in the county
where docketed th en owned by him or afterw ards acquired, and the
lien continues for ten years after the entry of the judgm ent. T rans­
cripts of judgm ents in justice and m unicipal courts m ay be filed in
district court and th ere docketed, and th en become lien on real estate.
L ie n s. To preserve a m echanic’s lien a verified statem ent m oat
be filed by th e Hen claim ant within ninety days after furnishing the
last item of labor or m aterial in th e office of the register of deeds of
the county in which th e Improved premises are situated, or if claimed
upon a line of railway or its appurtenances w ith the secretary of state.
L im ita tio n o f A c tio n s . .O n contracts express or Implied six
years; judgm ents ten years; to foreclose mortgages fifteen years; to
recover real estate, fifteen years. B u t no action shall be m aintained
on a judgm ent note, or other instrum ent authorizing Confession or
Judgment unless begun within one year after Cause of Action accrued;
and no action shall be m aintained upon any Judgm ent of any C ourt or
the U. S. or of any S tate or Territory entered by Confession under a
w arrant of attorney, unless the action upon such judgm ent be begun
within one year after th e rendition or entry thereof.
M a rrie d W o m e n . P roperty acquired by wife before or after m ar­
riage rem ains her separate estate. I t is liable for her debts and torts
to the same ex ten t as if she were unm arried, and sim P1®?7
contract which she could m ake If unm arried, except th a t no conveyance or contract for sale of her hom estead or any interest therein is
valid unless her husband joins in the same.
, . . . „ ,
Both husband and wife are liable for necessaries furnished to and
used by th e family.
M o rtg a g e s on real estate executed in the presence of two subscrib­
ing witnesses, acknowledged and recorded in the office of the register of
deeds of th e county in which th e m ortgaged premises are situated m ay
be foreclosed by publication or by action. The “ , ° ^ | agor or his
assigns m ay redeem within one year from the date of th e foreclosure
sale.
The au th o rity of an attorney conducting a foreclosure by M vertisement, m ust be in th e form of a Power of A ttorney’
acknowledged by th e m ortgagee or assignee ta.tlie same ™an?£r _as
a conveyance and recorded prior to th e sale in th e County whe e
the foreclosure proceedings are had.
The m ortgagor m ay covenant to pay or authorize the mortgagee
to retain any atto rn ey ’s fee In case of foreclosure of n ot exceedmg
$25; where th e mortgage debt does n ot exceed $ 5 0 0 , $50 where the
mortgage debt exceeds $500 and does not exceed $ 1 ,0 0 0 , $75 where
the m ortgage debt exceeds $1,000 and does not exceedHR^000 $100
where th e mortgage debt exceeds $5,000 b u t does not exceed $10,000,
and $200 where th e mortgage debt exceeds $10,000 _
f H
A Registry Tax of 15 cents is imposed upon each $100 or traction
thereof of the principal debt secured by any mortgage covering prot^
erty within th e S tate of M innesota and recorded 1DAa i L ,,
case th e m atu rity of any portion of th e debt so seemed shall be fixed
at a d ate more th an five years after th e date of said mart«:age, the
am ount of such Registry Tax shall be a t the rate of 25 cents o n e a c h
$100. N o such m ortgage or assignment or ,sa* ^ a c tio n therem or
papers relating to its foreclosure, shall be recorded or ^ i s t e r e d unless
such tax has been paid, nor shall any such docum ent or record thereof
be received in evidence in any court or have any va\\dity as notice or
otherwise. If such m ortgage describe real estate outside of Mm
. sota, such tax shall be imposed upon such proportion of the whole
debt secured as th e value of th e real estate described m this State
bears to th e value of th e whole real estate, such v a l u e 5 f ter
mined by th e State Auditor upon application of the mortgagee.
N o tes a n d B ills of E x ch an g e. Uniform N f f ^ ^ ^ i a j ^ p e r
ments Law has been in force since April 15. 1913, Commercial paper
is payable a t th e tim e fixed therein without grace. W'hen due
or payable on S aturday or on Sunday, or any legal
'¡the game is payable upon th e business day next succeeding, and m ay
b e protested on such succeeding day.
R ig h t to H o ld P ro p e rty . No pemon unless h e ^ a d tlzen of the
United States, or has declared his intention
„
no corporation unless created under th e laws of thefl U nited States, or
of some sta te thereof, shall acquire lands exceeding 90,000 square feet.


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1601

except by devise. Inheritance, tor through security for indebtedness.
This does not apply to actual settlers on farm s n ot exceeding 160 acres,
or to subjects of a foreign country, whose rights to hold lands are
secured by treaty .
•
No corporation, more th an 20 per cent of whose stock Is owned by
persons n o t citizens of th e U nited S tates, or by corporations not
created under its laws, or those of some sta te thereof, can acquire
lands, and no corporation unless organized for th e construction p i
operation of a railway, canal or turnpike can acquire m ore th a n 5,000
acres or more th an is'necessary for its operation, and lands granted
It by the S tate or U nited States.
. . ..
B ut this does not apply to lands acquiredm th e collection ol debts,
nor to a person or corporation engaged in selling lands to actual
settlers, or engaged In m anufacturing in Minnesota while so engaged.
Such persons or corporations not. so engaged m ust sell w hat th ey naa
April 13, 1911, w ithin ten years from th a t date and sell w hat they
acquire subsequent to th a t date w ithin ten years after th ey acquire it.
S ales of G oods. The Uniform Sales Act became effective April
20 1917.
T ax es on real estate m ay be paid one-half before th e first day of
June and one-half before the first day of November of th e year follow­
ing the levy thereof, and if not so paid a penalty of 10 per cent a t­
taches. If taxes on personal property are n ot paid before March i s t
of th e year following the levy thereof, a penalty of 10 per cent attaohes.
W ills. Every person of full age and sound m ind m ay dispose of
property by will in writing, signed by th e testato r, or by som e person
m his presence and by his direction, attested and subscribed in h u
presence by two or more com petent witnesses. Every person includes
m arried women. If, after m aking a will th e testa to r m arries, th e will
is thereby revoked.

SYNOPSIS OF

T H E L A W S OF M ISSISSIPPI
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by F low ers , B rown . C hambers & C ooper .
A ttorneys a t Law, Jackson. (See Card In A ttorneys’ List.)
A c c o u n ts. Sworn to entitles plaintiff to judgm ent, unless defend­
a n t files affidavit denying. The affidavit m ust be by th e creditor or
his agent. All accounts m ust be itemized.
Acknowledgments before any Judge, clerk of a court of record
under his seal, justice of the peace, notary public, or m em ber of the
board of supervisors, before any police justice, or m ayor of any c ity .
town or village. Acknowledgments in another sta te m ay be before
any of the judges of th e suprem e court, or any district judge of the
United States, or a judge of th e supreme or superior court in any state
or torritory, any justic© of tli© p©ac©# whose official character snail
be certified to under the seal of some court o f record in his county;
or by any commissioner residing in such sta te or territory, appointed
by the governor of Mississippi, or a notary public or a clerk of a court
of record having a seal or office. Acknowledgments or proof of
deeds to property in this State by persons in a foreign country m ay be
m ade before any court of record, or th e m ayor or chief m agistrate
of any city, borough, or corporation where th e grantor or witnesses
reside or m ay be; or before any commissioner appointed by; the gov­
ernor of this State, or before any am bassador, foreign m inister, sec­
retary of legation, or consul of th e U nited States. The certificate
gha.ii show th a t the p arty or p arty and witness were identified before
the officer, and th a t th e p arty acknowledged the execution of th e
instrum ent, or th a t th e execution was duly proved by th e witness or
witnesses. Acknowledgment m ust sta te th a t p arty acknowledged
th a t he signed and delivered ” instrum ent.
A c tio n s . All distinction as to forms abolished. Service five days
before return day. All action triable In the circuit court a t first term
In which the defendant has been personally served w ith process th irty
days before th e return day. Mandamus, quo w arranto, mechanics
liens, attachm ents, and replevin triable a t retu rn term on five days
notice.
A dm inistration of E s ta te s . H ad In chancery court, according
to will, If any. Claims against deceased m ust be registered w ithin one
year after the first publication of notice to creditors; registration stops
the general sta tu te of lim itations. All debts are to be paid before
heirs, distributors, or legatees. Claims against Insolvent estates are
paid pro rata.
A ffid av its o r O a th s before a Judge of any court of record, clerk of
such court, m aster In chancery, m em ber of th e board of supervisors,
justice of the peace, n otary public, m ayor, or police Justice of a city,
town or village; In another sta te by any officer thereof, o r of the
U nited States, authorized to admln^pter oaths.
A llen s. No restrictions on the rights or resident aliens to acquire
property or dispose of it. Non-resident aliens can n o t hold land, b u t
m ay take Hens thereon to secure debts and purchase a t foreclosure
thereof, and thereafter hold it for n o t longer th a n tw enty years, w ith
power to seU to a citizen In fee; or he m ay retain it by becoming a
eitlzen.
A n n e a ls from justice court to circuit court within ten days. From
circuit and chancery courts to suprem e court w ithin one year. Appeals
also in certain cases from b o ard of supervisors and m unicipal courts.
A r b itra tio n . Parties m ay subm it to arbitration of one or m ote
disinterested arbitrators, with agreem ent th a t proper court shaU enter
judgm ent.

1602

BANKING AND COMMERCIAL LAW S—MISSISSIPPI

A rre s ts m ade by certain officers, or private persons m ay arrest for
debt.*6 comm*tte d
Presence. No arrests or Imprisonment for
A s sig n m e n ts a n d Insolvency;. N o insolvent law. An assign­
m ent mayj be m ade for th e benefit of creditors. D ebtor, though
msolvent, m ay prefer creditors, if in good faith and no benefit, direct
or indirect, is reserved. No provision for th e discharge of a debtor
on ins m aking an assignm ent. In general assignments, where the
value exceeds ¡¡>1,000, th e assignee m ust give bond and adm inister
th e tru st in chancery. Preferences n o t prohibited. Practically super­
seded by b an krupt law.
A tta c h m e n t. Against a debtor who Is a non-resident or who
removes or is about to remove himself or property o ut of the S tate;
who so absconds or conceals himself th a t he cannot be served with a
summons; or who Incurred th e debt in conducting th e business of a
““ P* steam boat or other water craft in some of th e navigable waters
®f this S tate; or who assigns or disposes of his property, or some p art
yiereor, or is about to assign or dispose of his property with in ten t to
defraud his creditors; or who has property or rights in action which
he conceals and unjustly refuses to apply to the paym ent of his debts;
hr w«o has converted or is about to convert his property into money
a t evidences of debt, w ith th e intent to place it beyond the reach of
creditors; or who has fraudulently contracted the debt or incurred
th e obligation for which su it has beau or is about to be brought, m ay
be attached. In addition to those nam ed above, the following grounds
•xist:
9. T h a t th e defendant is buying, selling, or dealing in, or
“ f 8 wtthin six m onths next before the suing o ut of th e attachm ent,
directly or indirectly, bought, sold, or dealt in future contracts, com­
monly called futures.' 10. T h at he is in default for public money,
due from him as a principal, to th e State, or some county, city, town, or
Tillage thereof. 11. T h a t defendant is a banker, banking company,
or corporation, and received deposits of money, knowing a t the tim e
tna>t he or it was insolvent, or has m ade or published a false or fraudu­
lent statem ent as to his or its financial condition.” A ttachm ents for
debts not due allowed for last six grounds—or when th e creditor has
tubs cause to believe th a t the debtor will remove himself or hi« effects
o ut or S tate before debt will be due, with intent to defraud. Nonnsadent creditors have th e sam e rights of attachm ent as resident
creditors, whether th e debtor be resident or non-resident. Plaintiff
m ust furnish bond double th e debt and m ake affidavit as to one or more
grounds. Suit does not abate on verdict for defendant, on a plea deny­
ing grounds; b u t judgm ent on the debt, to be offset by damages in favor
©Tdefen d an t for wrongfully suing out attachm ent. Any creditors m ay
Intervene and contest ground of attachm ent.
A t t a c h m e n t in C h a n c e ry on bill against th e property, or debts
Ï? a a absent, non-resident, or absconding debtor. A lien is acquired by
th e suit. If a w rit for the seizure of" goods is obtained, bond is re­
quired. Available to non-residents.
B a n k s. Required capital stocks as follows: In cities, villages,
? ^ cL cormnumt'ies w ith Population 1,000 or less $10,000; population
1,000 and n ot more than 2,500, $15,000; population 2,500 and not
than 6,000, $25.000; population from 6,000 to 10,000, $35,000;
or„ ? lore’ $50,000. This does not apply to existing banks of
f l y , ) There_ shall be a board of bank examiners of three m en to
be elected, duties to enforce banking laws and examine banks period­
ically. Deposits guaranteed; depositors nam es not to be divulged;
Banks penalized for failure to comply w ith orders of examiners;
Banks m ust have a t least three directors; unlawful for any banks to
receive, deposits for six m onths in excess of ten tim es its paid up
rapirai and surplus; Banks officers m ust n ot contribute t o cam paign
fund of candidates.
All, except, national banks, are required to m ake a report, not less
th an four tim es each year, to the commissioner. And the commis­
sioner shall m ake requisition on all banks for these reports to be
m ade as of dates prior to the date of th e requisition, and such date
to be known only to himself. Such reports shall be verified and shall
be published in full in a newspaper of th e town or city where the
*)anlL.ls ®£Sf6ed;. Resources and liabilities shall be stated in such
reports. Banks collecting drafts w ith bill of lading attached m ust
“ S i .u n«s
‘eask ninety-six hours. Banks m ust give' notice to
adm inistrator or executor of deceased persons of deposits of money
an d papers held for th a deceased. D irectors of every bank to hold
three regular meetings each year and keep a complete record
o f . . . L Proceedings. Every bank with pipd up capital of as much
as $100,000 m ay do business as tru st com pany; m ay act as guardian,
receiver, etc.; m ay execute bonds in legal proceedings and generally
perform th e d u tie so f a tru st com pany; m ay establish a special m utual
toan departm ent; in such departm ent interest on loans not to exceed
8 pei’ cent per annum . Bank not perm itted to allow th e use of
Its nam e by others in m aking loans.
C h a tte l M o rtg a g e s a n d D eeds of T r u s t m ay be executed and
recorded as other mortgages. Foreclosure is usually by tru stee’s sale.
IX property be rem oved to another county, m ortgage m ust be there
recorded within twelve m onths to affect purchasers w ithout notice.
‘ rrort gaf es « » P ro p e rty to be acquired are valid, b u t n ot on a «hanging
stock of goods if th e m ortgagor rem ain in possession and continue
business. Reservation of title by the seller of a chattel to secure
purchase money is valid w ithout record, even against purchasers
w ithout notice..
C o lla te ra ls. General law prevails.
C o n tr a c ts for sale of land, or for lease for m ore th a n one Fear,
to be in writing. Same in regard to sale of chattels of the value of
more th an $50, unless delivery in whole or in p a rt is m ade. Dealing
m futures is forbidden and a ground for attach m en t. Gambling con­
tracts and ordinary contracts m ade on Sunday void. C ontracts by
foreign corporations who have not complied w ith registration of
ch arter law are void.
C o n v e y a n c e s. May vest title presently or in future. All estates
In land greater th a n for one year m ust be by deed, and to affect pur­
chasers w ithout notice m ust be recorded. E states tail prohibited,
except th a t a deed or devise m ay be m ade to a succession of living
donees n o t exceeding two and to th e heirs of th e body of th e remain­
derm an, or, in default thereof, to th e right heirs of th e donor in fee.
Corporations convey under seal. In all o th er cases private seals
abolished. Conveyances or devises to two or more, or to husband
an d wife, create tenancy in common. Rule in Shelly’s case abolished.
Rem ainder good w ithout particular estate. The words “ grant, bar­
gain, and sèll” operate as a covenant th a t grantor is seized of some
estate of inheritance. W ords “ convey and w arra n t” operate as a
general cpvenant of w arranty. The words “ convey and w arrant
specially operate as a w arranty only against th e g rantor or those
maiming u n d er him . A quitclaim deed has practically th e same effect.
H usband an d wife, if living together, m ust join in conveyance or
incum brance of hom estead of either, or it will be void as to all under
$ 3 ,0 0 0

C o rp o ra tio n s . Corporations except for th e construction and
operation of a railroad other th an street railroads, and th e carrying
on of an Insurance business, o ther th a n m utual insurance, m ay be
created under a general charter.
Application for oharter signed b y each of th e incorporators and
acknowledged. I t m ust then be published th ree consecutive weeks
m a new spaper published a t the domicile of th e proposed corporation.
The application, w ith proof of publication, m ust be forwarded to the
secretary of sta te together w ith th e fee for recording. The sam e to


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Federal Reserve Bank of St. Louis

th e attorney general for his opinion as to th e constitutionality and
legality of th e proposed corporation, after which it is referred to th#
governor for his approval or disapproval. The governor then returns
it to th e secretary of sta te with his action endorsed thereon. If ha
approve It, the secretary of sta te shall record it in his office and
certify to th e sam e records, and transm its it to th e applicants, ft
m ust be recorded in th e office of the clerk of the chancery court of
th e county in which th e corporation shall do business. W ithin thlrtv
days after the organization, the corporation m ust m ake report of
the organization to the secretary of state. I f such report be not mad#
the charter granted shall be void, and all persons doing business
thereon shall be deemed p artners in the business, and liable as suoh
corporations thus, created possess the powers usual and incident
to private corporations generally, b ut existence is restricted to fifty
years. Corporations created as above nam ed m ay hold property
necessary for th eir purposes, not exceeding one million dollars, manu­
facturing companies and banks excepted, which m ay hold property
to the am ount n o t exceeding two million dollars.
Under the laws passed by th e Legislature of 1912 all corporations
w hether domestic or foreign, are n ot allowed to acquire title in fee’
fif. for a term of years, to, or own land for agricultural purposes, in
th is .s ta te outside of an incorporated city, town, or village. A cor­
poration m ay be lessor or lessee for not more than tw enty years of
as much as 10,000 acres of land to be used for agricultural purposes
b u t any such lease or contract shall not be renewed or extended so
as
authorize th e holdings of said lands for another period.
This law does not prevent corporations from taking deeds of trust
or mortgages on real estate to secure loans or debts, or from acquiring
title thereto upon foreclosure of such securities or from acquiring
title to land by deed for the collection of debts, and th a t all lands so
acquired m ay be used and operated after foreclosure for all agriculyears purposes during th e tim e so held for n ot longer th a n twenty
I t is also th e d u ty of every corporation th a t shall acquire interest
hi or title to land in this S tate to file th e deed to sam e in th e office
or the Chancery Clerk of th e county in which such land, or a p art of
it, is located within sixty days after th e date of the deed.
If any corporation or other person shall have acquired an y right
title or interest in any land in violation of this Act, th ey shall be dissplved, by a suit brought by th e A ttorney General of th e S tate or by
the D istrict A ttorney, if it is a domestic corporation, and if a nonresident corporation th ey shall not be perm itted to do business in
this State, and the court shall thereafter appoint a receiver to take
charge of all property in this S tate belonging to such corporation or
so held in tru st and to dispose of th e sam e under order of th e court,
and after paying all debts of the corporation and all costs and charges
incident to said suit, th e rem ainder shall be paid and distributed to
th e stockholders.
This Act does n ot affect th e rights of existing corporations in this
S tate, b u t is passed to prevent a monopoly in agricultural lands.
Corporations m ay take a lien on property real, or personal, to a
greater am ount th an they m ay hold as a security for a debt, if «»mf
saa/l be held for a longer period th a n ten years. Stockholders
individually liable for th e debts the corporation contracted during
his ownership of stock for th e balance th a t m ay rem ain unpaid for
stock subscribed for and m ay be sued by any creditor. Directors are
liable for th e wilful m ism anagem ent or for allowing capital withdrawn
while debts exist. Corporations under the laws of o ther sta te s or of
foreign countries m ay sue in this S tate, and have th e sam e rights in
the S tate as non-resident individuals. The legislature m ay repeal or
am end charters granted after N ovem ber 1, 1890, provided rights of
stockholders are not infringed. All foreign corporations doing business
in this sta te shall file a certified and duly authenticated copy of its
charter or certificate w ith the secretary of state. C harter m ust be
certified by the president and secretary or other chief executive under
th e corporate seal. Fees are to be paid according to capital stock, viz.:
$10,000 and under, $20.00. Between $10,000 and $30,000, $40.00.
Between $30,000 and $50,000, $60.00. W hen over $50,000, one-tenth
of one per cent and n ot to exceed $250.00.
C o sts. N on-resident or insolvent plaintiff required to give security
though an insolvent m ay sue in form a pauperis.
C o u rts . Terms and Jurisdiction. Justices’ oourts m eet twice each
m onth; circuit and chancery courts in each county twice a year;
suprem e court twice a year, in October and March. Justices’ oourts
have Jurisdiction up to $200. Circuit courts have general Jurisdiction
of
c«1» 1»«» law actions where th e am ount or value exceeds $200,
and jurisdiction of appeals from justices’ and m ayors’ courts, and
boards of supervisors. Chancery courts have jurisdiction of the
adm inistration of estates of deceased persons, of m inors’ business and
other probate m atters, an d of all m atters in equity. Appeals m ay be
taken to the suprem e court from an y final judgm ent of th e circuit
court, and from the chancery court, except In suits for not more than
$50 originating in the justice’s court. Suits of equitable cognizance
im properly brought in the circuit court are transferred to chanoery
court, and vice versa. No su it dismissed because being of an equitable
n atu re it is im properly brought in the circuit court and e converso.
C re d ito rs ’ B ills m ay be filed under general to subject equitable
assets and in aid of execution a t law. Such bills m ay, under the
sta tu te , be filed to subject p roperty of a debtor fraudulently conveyed
w ithout a Judgment and return of nulla bona; and this w hether com­
plainant’s debt is due or not. No bond is required unless a sequestra­
tion is desired.
C u r te s y a n d Dowe'r. B oth abolished since 1880.
D eed s. ’ (See Conveyances.)
D e p o s itio n s in civil cases, on w ritten or verbal interrogatories;
ten days’ notioe to opposite p arty . If such p a rty is absen t and has
no attorney, filing interrogatories ten days sufficient. The officer
shall swear th e witness to testify th e tru th , and shall im partially
exam ine him on th e interrogatories. The testim ony shall be fairly
w ritten down b y the officer or witness, or by a disinterested person in
the presence of, and shall be subscribed by th e witness. Depositions
th en certified, and transm itted by mail or other safe and convenient
m anner to the court where th e same are to be used. Officer’s cer­
tificate prlm a facie evidence of his character.
D e s c e n t a n d D is tr ib u tio n . E states of inheritance, real and
personal descend« l. To children and their descendants per stirpes.
2. T o brothers and sisters and father and m other in equal p arts and
their descendants by representation. 3. To the next of kin according
to to e civil law. E xcept among brothers and sisters there is no
representation am ong collaterals. Advancements m ust be brought into
hotchpot. N o distinction between children of th e whole blood and
those of to e half blood, except th a t children of th e whole blood are
preferred to those of to e half blood in equal degree. Where there is
no one to inherit property escheats. Illegitim ates inherit from the
m other and from her other children and her kindred. Children of
Illegitimates and their descendants inherit from brothers and sisters
of their father or m other and from grand parents. B ut children of
illegitimates do n ot inherit from any ancestor or collateral kindred if
there ne legitim ate heirs of such ancestor or collateral kindred, in the
same degree. E xem pt property of husband or wife descends to sur­
vivor and children as ten an ts in common.
D o w er a n d C u r te s y have been abolished since 1880.

BANKING AND COMMERCIAL LAWS—MISSISSIPPI
E v id e n ce. I n th e m ain common law rules apply, p arties and
interested persons com petent; except against decedent. Affidavit to
cnen account entitles to Judgm ent, unless defendant denies under
oath a W arehouse receipts an d bills of lading conclusive evidence In
favor of a bona fide holder th a t the property was received by the
issuer. (See also Accounts and Affidavits.)
Executions In circuit court Issue w ithin tw enty days afte r th e
adjournm ent of court unless otherwise ordered by the plaintiff, and
in justices courts after th e lapse of ten days from Judgm ent rendered,
unless recovering p arty m akes affidavit th a t he Is In danger, by delay,
oflosing his deb t or dem and, In which case execution lssuesforthw ith.
No redem ption of property sold under execution or m ortgage.
E x e m p tio n s . The following personal property is exem pt from
seizure under execution or attachm ent, to-w it:
The tools of a m echanic necessary for carrying on his trade.
The agricultural im plem ents of a farm er necessary for two male
<a*The Im plements of a laborer necessary In his usual em ploym ent.
The books of a stu d e n t required for th e completion of his educa**°xiie wearing apparel of every person.
.
.
. __. .
The libraries of all persons, Including pictures, drawings, and palntIngsTnot exceeding live hundred dollars in value; also the instrum ents
of surgeons and dentists, used in th eir profession, n ot exceeding two
hundred and fifty dollars in value.
The arm s and accoutrem ents of each person of the m ilitia of the
StAJl globes and m aps used by the teachers of schools, academies, and
^ T h ? folio wing property of each head of a family, to be selected by
♦he debtor. Is exem pt:
,
.
,
, ___
Two work-horses or mules, and one yoke of oxen.
Two head of cows and calves.
Ten head of hogs.
_
.
Twenty head of sheep an d goats each.
All c o ite u n d e r three years old raised In this S tate by the debtor.
Two hundred an d fifty bushels of com .
Ten bushels of w heat or rice.
Five hundred pounds of pork, bacon, or other m eat.
One hundred bushels of cotton seed.
* %^
Ono wagon, and one buggy or cart, anil one set of
Five hundred bundles of fodder an d one thousand pounds of hay.
Forty gallons of sorgnum or molasses or cane syrup.
O ne thousand stalks of sugar cane.
__. „ .
.
One molasses mill and equipm ents, n o t exceeding one hundred and
fifty dollars In value.
„
Two bridles and one saddle» and one side saddle.
Household8a^d°kitchen furniture n o t exceeding In value two hun­
dred dollars.
One mower and rake for cutting and gathering hay
t _
And th e following property shall be exem pt from garnishm ent or
i R R S S S i R R i S ¡ S o " * « P O T » « « U K lo r O T M . U
head of a fam ily, to th e am ount of fifty dollars per f a m . .
paragraph shall n o t apply to a debt for board and lodging or a Judg
ment founded on a d eb t for board and lodging.
The proceeds of Insurance on property, real and personal, exem pt
from execution or attach m ent, and the proceeds of the sale of such
Prpaya& e to Executor. Life Insurance policy n ot exceeding five
thousand dollars, payable to the executor.
inure to th e heirs or legatees, freed from all liabfitty f o r the debts of
the decedent, except premiums paid on the policy=+yu
tor
than th e insured and debts due for expenses of last lUness and lor
burial: b u t if tbe life of th e deceased be insured for the benefit of his
heirs or legatees a t th e tim e of his death othcrwlsei and they shall
collect the same, th e sum collected slmll be deducted from the three
thousand dollars, and th e excess of the la tte r only shall be exem pt.
Life insurance policy to am ount not exceeding $ 1 0 000.00 goes to parties
named as beneficiaries free from liability fo rd e b ts o fm s u re d
Homestead in Country. Every citizen being a householder, ana
having a fam ily, shall be entitled to hold exem pt thei land and b.uj}£*
tags owned and occupied as a residence, b u t the quantity shall not
exceed one hundred and sixty acres, nor
H IS S E S
of Improvements, save as hereinafter provided, th e sum of three
^ ^ o m e s te a d ain Cities. E very citizen being a,,.h ^ se^ f f ^ 0a entHled
ine a fam ilv residing In an y city, town, or village, shall be entitled
toehold, theyiand and buildings owned and
such person, n o t to exceed In value, save as hereinafter provided,
three thousand dollars, and Personal property, to be selected by
him, n o t to exceed in value two hundred and fifty dollars, or the
articles specified as exem pt to the head of a family.
value bv
Homestead exem ption m ay be Increased to $3,00 0 In value oy
filing for record In chancery clerk’s office a declaration claiming as
eXNbPprop?rty isre le m p t as against purchase money or fo rla b o r per­
formed on it or m aterial furnished therefor. M oney Jo»“ « 1 a t rates
of interest not exceeding 6 per cent is exem pt from taxation.
F o re ig n C o rp o ra tio n s m ay do business and sue and be sued as
in case of dom estic corporations. (See
iT1^ t h e i r
corporations doing business in th e S tate w ithout recording
charters are subject to fine; and all contracts are null a-nd^v---Sales of m erchandise otherwise than in usual course
ant*
sales of entire stock of goods in gross presumed fraudulent and void as
to creditors, unless 5 days before sale, seller make
and the purchaser m ade dem and of seller for name, address and am ount
Of claim of each creditor, and the purchaser notifled personally or by
mail each of creditors of prased sale and of cost price of merchandise
and th e price to be paid therefor.
w hbh Hinra
In case of destruction of stock of |§erchandise by Are, on wtdch there
Is insurance, holder of policies to notify creditors he owesi for merchan
dise of his loss and am ount of insurance carried, w ithin 5 days.
F ra u d a n d F r a u d u le n t C o n v e y a n c e s. (See A ttachm ent, Bills
of Lading, Lim itations, Creditor’s Bill.)
G a r n is h m e n t on Judgm ents or In attachm ent. Binds debts or
property of debtor In garnishee’s hands.
G race. Abolished.
:
H o lid ay s are Ja n . 1. Feb. 22, April 26- June 3. July
Monday
In September, fourth T hursday In November, and December 2S.
Instrum ents falling due on a holiday are Payable on the next succeeding
business day. . Instrum ents falling due on Saturday are' ^ be p . ,
for paym ent on th e next succeeding business d a y h e
nrem ents payable on dem and m ight a t th e option
sented for paym ent before twelve o clock noon on S aturday when t a
day is not an entire holiday.
...
*
H o m e s te a d owned and occup!ed_by husband
be sold of encum bered unless the wife Joins In the <pnv®yance.
same Is tru e as to husband if wife owns hom estead. (See n
P
tlbns.)


https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis

1603

H u s b a n d a n d W ife. The disabilities of coverture a « abolished,
as are dower and curtesy. H usband and wife m ay contract w ^
and sue each other, b u t contracts for com pensation for «erviCM ren
dered to each other are void. If husband ^rents vdfe s land, mffie».
etc., and does business in his own name, It will be deemed th e businww
of the w ifeasto those w ithout notice, unless the contract be recorded.
Transfers between are void as to third persons unless recorded. (See
also Married Women, Wills, and Homestead.)
In so lv e n c y . No general insolvent laws, b u t Insolvent estate« ol
decedents are divided among creditors pro rata.
. . .
In case of insolvency partnership property is applied first to partner
ship debts, and e converso.
I n te re s t. Legal rate 6 per cent per annum , ¿nd J s i e x ^ t from
any taxes, b u t parties m ay contract m writing: for- 8 p ercen t, vflien
more is stipulated or collected all interest
W nen abov
20 per cent interest and principal forfeited and paym ents torteitea.
J u d g m e n ts enrolled become liens on defendant’s p ro p erty yrtw ta
th e county. A Junior judgm ent creditor m ay obtain p rlo n ty as to
property levied on by him . if. after ten days’ n o tic e .th e s e n lo r Judg­
m ent creditors fail to Issue executions and point o ut th e property.
Lien of Judgment continues seven years.
J u r is d ic tio n . (See Courts.)
L ie n s. Lien of an enrolled Judgm ent, ol; mechanics and M aterial
men. of landlord and laborer on agricultural products. Innkeepe r s
S id stablekeeper’s Hen. The seller of goods m ay enforcei lien fe r th*
price of the same, provided the goods are still in the
fiiiS
m irchaser or one having notice. The procedure is by affidavit, m ap
a t the commencement suit, stating th a t the purchase
A w rit of seizure Issues, and the goods are taken. T itle to personal
property m ay be reserved by the seller as security
th e price, and
this Is good even as against a subsequent bona fide purchaser, w ith­
o ut any writing or record.
t .im ita tio n s .
Ouen accounts, accounts stated, and verbal con­
tracts, express or Implied, three years; all other contracts, sta years,
awards of arbitrators, six years; Judgm ents and decrees ™ adered ta
another sta te against resident of this, three years; remtored to this»
seven years; real actions, ten years. Actions to recover property
souTumler order of chancery court m ust be brought w ithin two years,
where possession Is taken and purchase “ on®?
When the legal title to property or right In action is to an ^ e c u to * .
tm ardlan or other trustee, beneficiary, though under disability, is
barred when trustee is barred. Action ¡1against a d m in istra te ^or
executor on claim against person deceased lim ited to
of Qualification of such adm inistrator or executor. S tatu te doesnofc
apply to suits on notes or evidences of debt of banks or
corporations. An acknowledgment or new promise m ust k e jn w ritin * .
S tatute does not run during fraudulent c o n c ^ m e n t^ n o r
or person non compos m entis, nor against a convict in actaoM ror
assault, etc., until after release, nor against State, county, m unicipality,
or any political subdivision of S tate
M a rrie d W o m en retain their estate, common law disabilities of
coverture abrogated; have capacity to m a k e c o n tr a c ts a n d do afi
in reference to property Dower and curtesy abonsneu. fliM«
hand1and wife mustPJota In conveying or encum bering hom estead.
(See also Husband and Wife and Descent.)
M o rte a e e s a n d T r u s t D eeds do n o t take effect as to creditors or
nurchasers in good faith and w ithout notice until they are delivered
P0 the clerk for record; w ith power of sale are foreclosed by sale 1»
patafw fthout powe“ of sale, by suit in chancery court, and a fter fore­
closure there is no redem ption. (See Chattel Mortgages.)
N o ta rie s. H ave power to adm inister oaths, take acknowledgments
and to protest notes and bills. (See Conveyances).
N o tes a n d B ills. Uniform Negotiable Instrum ents Law adopted
and now operative.
M
P a r tn e rs h ip . Few sta tu to ry provisions. Governed by
law. In casePof insolvency, partnership property m ust go to pay
firm debts, and e converso. Provision m ade for lim ited or special
partnerships.
.
P ow ers of A tto r n e y . May be acknowledged or proved and
recorded as deeds. May be revoked in like m anner. Conveyances
of laud or other property under powers of attorney are valid.
R e d e m p tio n . P No redem ption from sales under mortgage, execu­
tion or other Judicial sale. Two years allowed for redem ption of
lin d sold for Wxes, saving to minors and persons non compos m entis
a like period after removal of disability,
t
_
R e p le v in lies to recover personal property wrongfully withheld
from th e owner The property m ay be restored to defendant on bond.
decltaS to bond, plaintiff m ay do so. If neither does, a claim ant
of th e property m ay give th e bond and receive possession. Damages
m ay be assessed tor wrongful taking or detention.
T axes
Personal property Is assessed once a year: real estate
every tw o years, and taxes constitute a prior lieu. L aud delinquent
sold r a first Monday of April. Redem ption w ithin tw o years. on
paym ent o f a llta x e s , co sts.2 5 per cent damages. a n d 5 per eent oa
am ount paid. Infants an d persons of unsound m ind m ay redeem
w ithin two years after removal of disability, on paying
perm anent Im provements p u t on the land after two years from date
of sale.
,
T r u s t C o m p a n ie s. Provision for such companies w lth general
powera—to adm inister all trusts, m ake bonds and th e like. (See
Banks.)
W a re h o u se R eceipts» (See Bills of Lading.)
_
W ills executed by anyone twenty-one years old, of sound m ind.
As to land, if n ot wholly w ritten and subscribed b y testa to r, m ust be
attested bv two subscribing witnesses. A nuncupative will (of per­
sonalty) m ay he m ade during last sickness of testa to r a t habltaMon.
nt- where testato r has resided ten days next before death, or where
person Is taken sick from home and dies before return: m ust he proved
bv two witnesses. N un-cupative wills not to be established where value
heaueathed exceeds $100.00. Soldiers and sailors in actual service m ay
heoueath personalty free from statu to ry restrictions. N o restriction
upon the power to dispose of property by will except th a t religious or
charitable1*trusts or bequests void. Provisions m ade for renouncing
will by surviving husband or wife in certain cases. P robated in eommon form m ay be contested within two years. One who kills another
cannot take under his will.

1604

BANKING AND COMMERCIAL LAWS—MISSOURI

indefeasible estate in fee simple; th a t th e real estate was free irom all
Incumbrances done or suffered by him or any person under whom he
claims; and for further assurances of th e title to be m ade by him and
his heirs. Title, subsequently acquired by the grantor in a warrantv
deed, will im m ediately pass to th e grantee w ithout further convey­
ance. An estate of freehold m ay be m ade to commence in future
b y deed. An interest in real estate, granted or devised to two or
more persons, other th an 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
a t common law. Females of eighteen years are considered of full
age for th e purpose of conveying real estate.
C o rp o ra tio n s are formed under general law. In the case of manu­
facturing and m ost o ther business corporations, the capital m ust b«
not less th an $2,000 nor more th an $500,000,000. One-half m ust be
subscribed and actually paid up in money or property of the full
SYNOPSIS OF
value thereof, if p a rt of the capital stock is paid in property, there
m ust be an itemized description, th e actual cash value of each item
being shown. P a rt of the stock m ay be preferred, paying not to
exceed 6 per cent annual dividends. Cum ulative voting is permitted
D irectors m ust n ot be less th an three nor m ore th an twenty-one: three
of them m ust be citizens and residents of the S tate. A stockholder
having
paid for his stock in full is subject to no further liability. The
RELATING TO
am ount of th e bonded indebtedness cannot, in any event, exceed the
am ount of th e authorized capital stock. The bonded indebtedness
cannot be increased nor th e cap ital stock increased or diminished
BANKING AND COMMERCIAL USAGES
except w ith th e consent of persons holding th e larger am ount in value
of th e stock. Two-thirds in value of th e stock m ay apply to th e cir­
cuit court for a decree for the winding up of th e business. The
General Assembly of 1913 enacted w hat is popularly known as a
Prepared and Revised by Messrs. G a g e , L add & S m a ll , A ttorneys a t
blue sky law, placing under strict supervision of th e Bank Com­
Law, Kansas City. (See Card In A ttorneys’ List.)
missioner, corporations and partnerships carrying on th e business of
selling and negotiating stocks, bonds and securities (a few securities
excepted).
A c k n o w le d g m e n ts . Acknowledgments of Instrum ents affecting
Ample powers of visitation and sum m ary action are conferred upon
real estate m ay be before one of the following courts or officers, l .
the
Bank Commissioner, and penalties of fine and imprisonment
W ithin th is S tate, some court having a seal, or some judge, justice or
imposed for violation of th e law.
clerk thereof, a n otary public, or some justice of th e peace of the
A foreign corporation m ust file in the office of the secretary of state
county In which th e real estate Is situated. 2. Outside of this S tate
a copy of its charter w ith a statem ent of th e proportion of its capital
and w ithin th e U nited States, an y n otary public, an y court having a
stock invested in Missouri and pay certain fees. I t then receives a
•eal or th e clerk of such court, or commissioner of deeds. 3. W ithout
license to do business in the S tate. I t m ust also m aintain an office
th e U nited States, an y court having a seal, th e m ayor or chief officer
in the S tate. Its personal property in this S tate m ay n ot be Incum­
of an y city or town having an official seal, an y m inister, consul or
bered to the injury of any creditor who is a citizen of this S tate, and
officer of th e U nited States, or n o tary public having a seal. The
no m ortgage by a foreign corporation except a railroad or telegraph
official should certify th a t “ before me personally a p p e a re d .. ...........
company, to secure a debt created in another S tate is effective as
aud . . . . . . . . . . . his wife, to me known to be the persons described In,
against any citizen of this S tate until its debts, due to resident citizens
and who executed th e foregoing instrum ent ana acknowledged th a t
a t the tim e of recording the mortgage, have been paid. A corporation
th ey executed th e sam e as th eir free a ct and deed.”
failing to comply w ith these provisions is subject to a fine and cannot
A c tio n s . There is in this S tate b u t one form of civil action the
m aintain a suit in a court of this S tate. A corporation of an y country
practice being under a code. A non-resident plaintiff m ust file the
outside of the U nited S tates before being authorized to tran sact busi­
w ritten undertaking of some resident for costs.
ness In' this S tate m ust have a public office in the S tate, where books
. A d m in is tr a tio n of E s ta te s . The probate court In each county
shall
be kept, showing in detail its assets and liabilities, th e names
has jurisdiction of th e settlem ent of the estates of deceased persons.
and residences of Its shareholders, officers, directors, and managers.
Claims presented to th e court for allowance within six m onths after
None
of these requirem ents apply to insurance companies.
the g ran t of letters are preferred over those presented later. Claims
C o u rts. Circuit courts have original Jurisdiction in all cases of law
n o t presented, within one year from th e granting of letters are barred.
and equity and hold two or more term s in each year in each county.
L etters are g ranted: 1. To th e husband or wife. 2. To those
Jurisdiction of th e settlem ent of estates of deceased persons is vested
entitled to distribution, or one or more of them . If a fter th e expira­
m a probate court In each county. Justices of the peace have juris­
tion of th irty days after death of deceased, such persons do not, on five
diction lim ited to $250; in townships having 200,000 and less than
days notice, appear and qualify, letters m ay be granted to an y other
400,000 inhabitants th e jurisdiction is $500. Appeals lie from judg­
person. Non-residents cannot be executors or adm inistrators, nor
m
ents of justices and th e probate court to the circuit court.
V
m ay non-resident executors or adm inistrators m aintain an action In
this S tate.
D ay s of G race are abolished. (See Negotiable Instrum ents.)
A llen s. Allens or alien corporations m ay not acquire, hold or own
D e p o s itio n s . May be taken on notice of a t least three days and
real estate except such as m ay be acquired by Inheritance or In the
one d ay additional for every fifty miles of the first 300 and beyond th at
ordinary course of Justice in the collection of debts. Real estate
one additional day for each 100 miles from the place of serving the
acquired b y an alien creditor a t foreclosure sale m ust be disposed of
notice. If taken outside of th e S tate a commission issues from the
w ithin five years.
court in which the suit is pending. They m ay be taken within
A r b itr a tio n . P arties to a controversy m ay subm it the same to
the S tate by any judge, justice of the peace,notary public,clerk of a court,
arb itrato rs, and their aw ard be confirmed by a court and judgm ent
m ayor or chief Officer of a city or tow n having a seal of office: and if out
rendered thereon.
of the S tate by any officer appointed by au th o rity of the laws of this
S tate to take depositions, a consul or commercial representative of
A rre s t. No person can be arrested under civil process.
the United S tates having a seal, or m ayor of any city or town having a
A s s ig n m e n ts . V oluntary assignm ents m ust be for the equal
seal, or any judge, justice of th e peace, or other judicial officer, or a
benefit of all the creditors of the assignor and are adm inistered In the
notary public. They m ay be taken upon w ritten interrogatories, but
circuit court. No such assignm ent operates as a discharge of the
this is not custom ary. The names of th e witnesses or of th e officer
assignor from his debts.
need not be m entioned in the notice. Objections to th e competency
A tta c h m e n ts . The w rit m ay issue when th e debtor Isa non-resi­
or relevancy of th e testim ony need not be noted, b u t can be first made
when it is offered a t the trial.
den t; or conceals himself so th a t the ordinary process of law cannot
be served; or, has absconded or absented himself from his usual place
D e s c e n t a n d D is tr ib u tio n of P ro p e rty . The real and personal
of abode in th is S tate, so th a t process cannot be served; or, is about to
estate of an intestate descends and Is distributed as follows: l. To
remove his p roperty out of th e S tate w ith Intent to defraud, hinder, or
his children or their descendents in equal parts. 2. I f there be no
delay his creditors; or, is about to remove o ut of th e S tate and change
children or their descendants, then to his father, m other, brothers, and
his domicile; or, has fraudulently conveyed, concealed; or removed
sisters, and their descendants In equal parts. 3. If there be no chil­
his property, o r Is ab o u t to do so, to hinder or delay his creditors; or,
dren or their descendants, father, m other, brother or sister, nor their
has failed to p ay the price of an y article which he was bound to pay for
descendants, then to th e husband or wife; If there be no husband or
upon its delivery, of has fraudulently contracted the debt; or, where
wife, th en to the grandfather, grandm other, uncles and au n ts, and
th e cause of action accrued o u t of this S tate and the defendant has
their descendants in equal parts. 4. If there be no children or their
absconded or secretly removed his property into this S tate; or, where
descendants, father, m other, brother, sister, or their descendants,
th e dam ages sued for arise from th e commission of a felony or mis­
husband or wife, grandfather, grandm other, uncles, aunts, or their
dem eanor or th e seduction of a fem ale; or, th e defendant is a corpora­
descendants, then to the great-grandfathers, great-grandm others, and
tion whose chief office or place of business is out of this S tate. The
their descendants, in equal parts, and so on, in other cases without end
plaintiff, his agent, or atto rn ey m ust m ake affidavit to one or more of
passing to th e nearest lineal ancestors and th eir children, and their
these grounds, and the plaintiff, except where the defendant Is a non­
descendants in equal parts. Posthum ous children inherit. When
resident, m ust give bond for double the am ount of th e debt.
there are collaterals of th e half blood, they inherit half as much as those
B a n k s are organized under a general law. The cash capital m ust
of the whole blood. Lineal descendants in equal degree take per
n o t be less th an $10,000 nor more th an $5.000,000, and In cities of
capital: b ut where p a rt of them are dead and p a rt living, the issue of
150,000 or more, n ot less th an $100,000. The entire capital m ust be those dead take per stirpes. W hen a wife shall die w ithout an y child
or o th er descendants .in being, capable of inheriting, her widower shall
subscribed, one-half thereof paid up on organization, and the other
half within one year. Directors m ust be residents of this S tate. The
be entitled to one-half the real and personal estate belonging to the
wife a t the tim e of her death, absolutely, subject to th e paym ent of
receipt of deposits w ith knowledge of th e fact th a t th e bank is In failing
circum stances, Is punishable by fine or im prisonm ent, and officers
the wife’s debts, and th e widow takes a like share of th e estate of her
an d agents consenting to th e creation of debts with such knowledge,
husband on his death w ithout lineal descendants. ,An illegitimate
are Individually responsible therefor. N ot more th an 25 per cent of
child Inherits from its m other, and vice versa. An illegitim ate child
becomes legitim ate if the parents interm arry.
Its capital stock m ust be loaned to an y Individual or corporation.
Large powers of supervision and control are vested in th e bank com­
D o w er. Dower in real estate is as a t common law, b ut th e widow
missioner. P riv ate bankers m ust have a paid-up capital of not less
has the right, a t her election, to choose certain portions of her hus­
th an $10,000. and In cities of 150,000 population or more, not less than
band’s
estate asolutely, in lieu of dower. A widow m ay renounce
$ 1 0 0 ,0 0 0 .
provisions in a will in lieu of dower and elect to take absolutely certain
E very firm or individual as well as every corporation th a t engages
portions
of th e estate. No conveyance by the husband or sale under
in th e business of banking shall be subject to th e strict supervision of
judgm ent or decree will bar dower. The estate by the curtesy exists
th è S tate Banking D epartm ent.
as a t common law.
C o n d itio n a l S ales of personal property, unless recorded, are void
E x e c u tio n s . Unless m otion for new trial Is filed within four days
as to subsequent purchasers in good faith and creditors.
after Judgm ent, execution issues im m ediately. Real estate m ust be
sold during a session of the court which rendered the judgm ent. Sales
C o n v e y an ces. A person m ay convey title to lands although not
-in possession, and although th e sam e be In adverse possession. The
of real estate m ust be advertised for tw enty days; of personal property
signature of th e grantor in a deed need n ot be attested by a subscrib­
for ten days. Execution sales are for cash. No execution is a lien
ing witness. A deed by a natural person need n o t be u nder his seal.
upon personal property until actual seizure thereof. I t m ay issue at
T he corporate seal m ust be affixed to deeds of corporations. The
any tim e w ithin ten years from the rendition of the Judgm ent. Deeds
use of th e w o rd ,“ heirs" in a deed is n o t necessary to create a fee
to the purchaser are m ade a t once by the sheriff, no confirmation of
sale being required.
simple. T he sta tu te abolishes estates tail and converts an estate
tail into a life estate for th e first tak er w ith rem ainder in fee simple
E x e m p tio n s . The hom estead of th e head of a fam ily is exem pt.
to th e heirs of his body. T he words “ grant, bargain and sell” are
In the country to the extent of 160 acres n ot exceeding in value $1,500,
employed in th e granting clause of a w arranty deed; by sta tu te those
in cities of 40,000. eighteen square rods, not exceeding in value $3.000;
words constitute express covenants th a t th e grantor was seized of an
in cities of 10.000. thirty square rods. not. exceeding m value $1.500; in

T H E L A W S OF M ISSOURI


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BANKING AND COMMERCIAL LAWS#—MONTANA
towns of less th a n 10,000, /ten acres, n ot exceeding in value $l,'50u.
The exem ption continues to the widow and to the children until their
majority. There are also exem pt, when owned by the head of a fam ily,
ten hogs, ten sheep, two cows, and certain farm im plem ents; two work
animals spinning wheel, loom, and small q u an tity of hem p, flax, and
wool; wearing apparel; $100 in household and kitchen furniture;
mechanic’s tools; provisions on hand for fam ily use; Bibles and o th er
books used in tn e fam ily. Lawyers, physicians, ministers, 'and
teachers have th e right to select professional books in lieu of other
property allowed to them and doctors m ay select medicines. In lieu
of certain of th e exem pted articles an y other property, n ot exceeding
$300 in value, m ay be selected.
F ra u d s a n d P e r ju rie s . No executor or adm inistrator is bound by
his prom ise to pay an y deb t or damages out of his own estate, and no
person is liable upon an y agreem ent to answer for the debt, default, or
miscarriage of another, or m ade in consideration of m arriage, or for
the sale of lands or an y interest in or lease thereof for a longer tim e
than one year, or on an y agreem ent th a t is n ot to be performed within
one year unless th e agreem ent sued on. or a m em orandum thereof,is in
writing signed by th e p a rty to be charged or his authorized agent; and
no contract for th e sale of lands by an agent is valid unless th e author­
ity of th e agent is In writing. Every gift, conveyance, or assignm ent
of or charge upon real or personal property m ade with intent to hinder,
delay, or defraud creditors or defraud or deceive persons who shall pur­
chase th e same lands, is void against creditors and purchasers, prior
and subsequent. The disposition of the larger p art or the whole of a
stock of m erchandise pertaining to vendor’s business otherwise th an
in th e ordinary course of trade, is fraudulent and void as against credi­
tors of th e vendor, unless th e vendee shall, a t least seven days before
the sale furnish to th e creditors a statem ent of th e consideration for
the sale, th e am ount of th e indebtedness of th e vendor, and the names
Of his creditors. All creations of tru st in lands m ust be to writing
except those resulting by im plication of law.
G a r n is h m e n t. Garnishees m ay be summoned under writs of
attachm ent or execution. A garnishee m ay discharge himself by
delivering up th e p roperty or paying the debt to the officer under order
of court. Credits or property attached to the hands of a garnishee
may be claimed by a th ird person, who m ay assert his title by inter­
pleader. N ot more th an 10 per cent of th e wages due for the last
th irty day s’ service of th e head of a fam ily and resident of this S tate
can be garnished. Public corporations and their officers are exem pt
from garnishm ent, as are also adm inistrators and executors prior to
an order of distribution.
H o lid ay s. Jan u ary 1, F ebruary 22, M ay 30, J u l y '4, the first
M onday of September, any general prim ary 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, th e next day is such holiday. F ebruary 12,
known as “ Lincoln D ay ” and October 12, known as “ Columbus D ay”
are also holidays, b u t are n ot such as respects commercial paper.
H u s b a n d a n d W ife. (See M arried Women.)
I n te r e s t. Legal rate 6 per cent, b u t by agreem ent in writing any
rate n o t exceeding 8 per cent. The legal rate is collectible on moneys
after th ey become due; on w ritten contracts or accounts, after due
and dem and made; on money recovered for th e use of another and
retained w ithout th e owner’s knowledge. If usurious Interest has been
p'aid th a t p a rt in excess of th e legal rate is deemed paym ent and credit­
ed on th e debt, the holder of which recovers the debt only w ith legal
interest after deducting such paym ents, and costs are adjudged
against him . The receipt or exaction of usurious interest upon a debt
seoured by lien upon personal property renders th e lien invalid. P a rt­
ies m ay oontract th a t in terest m ay be com pounded, b u t n o t oftener
than once to a year.
J u d g m e n ts . Judgm ents and decrees rendered by a court of record
are liens on th e real estate of the person against whom they are rend­
ered situ ate in th e county for which the court iB held. T ranscript of
a judgm ent filed to th e office of the clerk of the circuit court of any
other county becomes a lien upon real estate to suoh county. The
Hen of a judgm ent continues for three years, and m ay be revived a t any
time within ten years from its rendition. Execution m ay issue a t
any tim e w ithin ten years from the rendition of a judgm ent. When
two or more judgm ents are rendered a t the sam e term as between
parties entitled to th e judgm ents, the liens commence on the last day
of th e term a t which th ey are rendered. Judgm ents bear interest a t
6 per cent, b u t if upon contracts bearing more th an 6 per cent, the
judgm ent bears th e rate of the contract.
L ie n s. S tatu to ry provisions exist for mechanics’ liens, liens of
keeping horses an d o th er anim als, liens of inn and boarding-house
keepers, liens of contractors, m aterial-m en, and laborers against
railroads.
L im ita tio n s . Actions m ust be commenced wlthto ten years:
1. Upon an y w riting for the paym ent of money or property. 2.
On an y covenants of w arranty or seizin contained to any deed. 8.
For recovery of lands. 4. For relief n ot otherwise provided for.
W ithin five years: 1. Upon contracts, express or implied, except
judgm ents or decrees of court. 2. Upon a sta tu to ry liability other
th an a penalty o r forfeiture. 3. Trespass. 4. Replevin, and for
any other in ju ry to th e person or rights of another n ot arising on con­
tract and n o t otherwise enum erated
5 F or relief on the ground of
fraud. W ithin th ree 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 p a rty or a p arty and the S tate. W ithin two
years: Actions for libel, slander, assault, battery, false Imprisonment,
or criminal conversation. S tatu te does n ot begin to run against a
resident of th is S tate who is absent a t th e tim e it accrues, until his
return; if he dep art a lte r it accrues, th e period of his absence is not
counted. Acknowledgments or promises, to take a case from the
operation of th e sta tu te, m ust be in writing. Judgm ents are pre­
sumed to be paid a fter ten years. A cause of action barred by the
laws of th e S tate in which it originated is barred to this State.
L im ite d P a r tn e r s h ip . May consist of one o r more general and
one or more special partners. Special partners contributing a speci­
fied am ount in cash to th e capital are n o t personally liable for the debts
of th e partnership an d have no power to tran sact its business. A
verified statem en t of th e term s of the partnership m ust be filed with
the recorder of th e county. There can be no lim ited partnership for
the business of insurance or banking.
M a rrie d W o m e n . A m arried woman is deemed a femme sole so
tar as to enable her to carry on or transact business on her own account,
to oontract and be contracted w ith, to sue and be sued, to enforce or
have enforced against h er property such judgm ents as m ay be rendered
for or against her, and m ay sue or be sued a t law or to equity, with or
w ithout her husband being joined as a party. H er real estate and
personal property cannot be taken by any process of law for the debts
of h e r husband. N either th e rents, issues, or products of her real
estate, nor th e interest of her husband in her right in any real estate,
can be levied on for his debts.
M ortgages, M ortgages on real estate are executed like deeds.
H usband and wife m ust join to bar dower or homestead, except to
secure,,purchase ,money. The common form of real estate security
is a .deed of. tru s t w ith power of sale in the trustee upon default in
the paym ent of th e debt. Sale, is a t public auction, upon tw enty


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*

1605

or more days’ .public notice, as m ay be provided in th e instrum ent.
The trustee executes deed to th e purchaser. There is no redem ption
from sale unless th e holder of the debt is the purchaser, in which case
the debtor m ay redeem -within one year if he ,gives w ritten notice a t
th e sale or within th e preceding ten days of his purpose, and within
tw enty days after sale give security for paym ent of interest to accrue
w ithin the year and all interest on prior incum brances paid by the
creditor and taxes and assessments accruing during th e year. E vi­
dences of debt secured by m ortgage or deed of tru st m ust be produced
to the recorder when satisfaction is entered. No foreign corporation
or individual m ay a c t as trustee in any deed of tru st unless there' be
nam ed as co-trustee a Missouri corporation or individual citizen of
this state, and the resident trustee m ust be a p a rty plaintiff in an
action to foreclose. ,
Chattel m ortgages are invalid except as between th e parties unless
possession of the property be taken and retained by th e mortgagee
or the m ortgage be acknowledged an d recorded in the county of the
m ortgagor to th e same m anner as conveyances of real estate, or unless
th e m ortgage or a copy thereof be filed to th e office of th e recorder of
th e county of th e m ortgagor, or, where he Is a non-resident of the
S tate, then in the office of th e recorder of th e county in which the
property is situated. Every such m ortgage ceases to be valid after
th e expiration of five years from the filing of th e same.
N eg o tia b le I n s t r u m e n t s . The General Assembly of this S tate
has codified th e law of negotiable instrum ents by th e passage of “ An
a c t relating to the negotiable instrum ents, to revise and codify the
law concerning th e same, and to establish a law uniform w ith th a t
of other states on th e subject." The act is th e same as th a t adopted
b y m any other states to accordance w ith th e recom m endation of the
American B ar Association. I t became effective to Missouri Ju n e 16,
1905.
P o w er o f A tto r n e y . An instrum ent of writing containing a power
to do any act or business, including th e conveyance of real estate,, as
agent or attorney for another, when acknowledged to th e same form
as required for deeds, m ay be read in evidence w ithout fu rth er proof
of its execution.
\
P ro b a te L aw . (See A dm inistration of E states.)
P ro te s t. (See Negotiable Instrum ents.)
R e p le v in . Goods or chattels wrongfully taken or retained m ay be
replevied by the owner or p arty entitled to possession. Affidavit
m ust be filed and bond to double th e value of th e property given. In
certain cases defendant m ay retain possession of th e property by giving
a bond to double its value. If plaintiff fail to his suit, defendant
recovers judgm ent against plaintiff and th e sureties on th e bond lor
the value of the property and damages.
T ax es. S tate and county taxes are usually paid in November
or December. If not paid, th ey are regarded as delinquent from the
first day of the succeeding January. S tate and county taxes for each
year are a lien upon the real estate from th e first day of Ju n e of the
preceding year. D elinquent sta te and county taxes are collected by
suit. Municipal taxes are payable according to the provisions of the
charters or general laws by which they m ay be governed. In some
cases th e paym ent of delinquent city taxes m ay be enforced by a sale
of the property w ithout suit: in others, suit m ust be brought before
sale can be m ade. There is no redem ption from a sale-under a judg­
m ent for sta te and county taxes. Redem ption is usually aUowed in
a sale for city taxes under the provisions of th e particular charter.
W ages. (See Garnishm ents; Exemptions.)
W ills. Every male person twenty-one years of age m ay, by his last
will, devise all of his estate, real, personal, and mixed, and every male
over the age of eighteen! years! may) bequeath his personal estate.
W omen of eighteen years of age and upward, m arried or unm arried,
m ay devise their real estate and bequeath their personal property. A
will m ust be to writing, signed b y the testa to r or some person by his
direction in his presence, and m ust be attested by two or more com­
petent witnesses subscribing their nam es to the will in the presenoe of
the testator. If a fter m aking th e will the testato r shall m arry and die
leaving issue of the marriage.Uvtog a t th e tim e of his death, or b o m to
him after his death, the will shall be deemed revoked. The will of an
unm arried woman is revoked by her subsequent m arriage. If a child
or children, or the descendants of such child or children, in case of
their death, are not nam ed or provided for in the will, th e testa to r is
deemed to nave died intestate as to such child or children or their
descendants. Wills m ust be presented for probate to the probate
court of the county in which was the place of abode of th e testa to r.
WlUs m ay be contested w ithin two years after th e probate thereof by
petition to the circuit court of th e county. Real estate in this S tate
m ay be devised by last will executed and proved according to th e laws
of this State. Personal estate m ay be bequeathed according to the
laws of the sta te or country to which th e will shall be m ade.

SYNOPSIS OF

T H E L A W S OF M O N TA N A
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by W ig h t a n d P e w .
A ttorneys a t Law, Helena.
A b s tra c te rs . M ust give $5,000.00 bond to sta te and shall receive
certificate from S tate Treasurer authorizing him to do business.
A bstract furnished by authorized abstracter adm itted to court has
prim a facie evidence of contents.

1606

BANKING AND COMMERCIAL LAWS—MONTANA

A c k n o w le d g m e n ts of Instrum ents m ay be taken in this S tate.
1. Before suprem e court justice, district judge, justice of th e peace,
clerk of an y court of record, county clerk, n o tary public, or U. S. Com­
missioner. 2. Outside M ontana in th e U nited States. Before the
justice, judge or clerk of any court of record of th e U nited States or
an y sta te or territory; a commissioner appointed by th e governor for
Chat purpose, a notary public, or an y other officer authorized to take
acknowledgments. 3. Outside U nited States before m inister, com­
missioner or chargé d ’affaires, consul, vice-consul or consular agent of
th e United States, a judge of court of record, commissioner appointed
by governor or notary public. In all cases acknowledgment m ust be
taken within jurisdiction of officer taking.
M ust be in substantially following form ; “ S tate o f ................... .
county o f ............... s. s. On t h i s ............day o f ............. 1 0 0 .., before
(name and quality of officer) personally appeared ............... known
to me (or proved on o ath o f ...........to be the ‘ person whose nam e is
subscribed to th e w ithin instrum ent, and acknowledged to me th a t
he (or they) executed the sam e.” Same for m arried women. In
case of corporation sam e to star, then “.president or vice president
(or secretary or assistant secretary) of th e corporation th a t executed
th e within instrum ent and acknowledged to me th a t such corporation
executed th e sam e,” and in case of attorney in fact, “ whose nam e is
subscribed to the within instrum ent as attorney in fact o f.........................
and acknowledged to me th a t he subscribed th e nam e o f.......................
th ereto as principal, and his own nam e as attorney-in-fact.” Outside
a t county m ust be accom panied by certificate of county clerk.
A d m in is tr a tio n o f E s t a t e is* had in district courts. Notice to
creditors published four weeks. Claims n ot presented in four m onths
after first notice, if estate $10,000 o r less, or ten m onths if over
$10,000, are barred.
L etters of adm inistration granted to : 1. Surviving husband or
wife or com petent appointee. 2. Child. 3. F ath er or m other. 4.
Brother. 5. Sister. 6. Grandchild. 7. N ext of kin who inherits.
$. Public adm inistrator. 9. Creditor. 10. Any person legally
com petent. W hen several claim right and equally entitled^ court
appoints, preferring males to females and whole blood to half blood.
A ffid av its m ay be taken or oaths adm inistered before any judicial
officer, clerk of any court, county clerk or notary public in this S tate;
in an y o th er sta te before a commissioner appointed by the governor,
no tary public, or judge or clerk of any court of record having a seal;
in a foreign country before an am bassador, m inister, consul, viceconsul, o r consular agent of th e U nited States, or judge of a court of
record having a seal.
W hen' taken before a Judge in any o ther sta te or foreign country,
th e existence of the court, signature and official character of the judge
m u st be certified by th e clerk of such court, under its seal.
A llen s a n d D e n iz e n s have sam e rig h t as citizens to acquire, use
and dispose of mining property and real estate in connection th ere­
w ith.
A r b itr a tio n . Any controversy except over title to real property
m ay be subm itted to arb itratio n by a w ritten agreem ent to th a t effect
filed in court and m ay be m ade an order of court. W hen m ade an
order of court is irrevocable; otherw ise it Is revocable a t any tim e
before aw ard. An agreem ent to arb itra te cannot be specifically
enforced.
A rre s t. D efendant In a civil action m ay be arrested when ab o u t
to leave th e S tate or conceal his property, with in ten t to defraud
creditors, and in certain o ther action where fraud, wilful injury, or
wilful violation of duty, or wrongful conversion of money or property
by a public officer or a fiduciary, or for fine or penalty.
A s s ig n m e n ts . V oluntary assignm ents for benefit of creditors
allowed if w ithout conditional preference, n ot co-erceive, im partial,
w ithout reservation for fraudulent benefit of assignor, and does not
confer power upon assignee to delay execution of the tru st, nor exem pt
him from liability for negligence or m isconduct. Is under partial
supervision of the district court.
A tta c h m e n ts . W rit of m ay be had a t the tim e of issuing sum­
mons o r an y tim e thereafter in actions upon unsecured contracts
express or Implied for direct paym ent of money; or If contracts origi­
nally secured, when security has become worthless w ithout plain­
tiff’s fau lt. Is issued upon affidavit on behalf of plaintiff, after filing
bond in double am ount of claim, if under $1,000; if over, in am ount
• f claim; bond never to exceed $10,000. A ny property, real or per­
sonal, or d eb t due from or money or personal p roperty held by th ird
person. Including judgm ents, m ay be attached.
B a n k s . No special provisions regarding national banks except
th a t all banks, organized under laws of this S tate or th e U nited States,
shall be taxed for value of its stock in county, town, city or d istrict
where located and n ot elsewhere, regardless of residence of stock­
holders.'
Banks of discount and deposit, incorporated under laws of M ontana
to r n o t less th an $20,000, all paid in cash, m ay do business when
authorized by sta te auditor, certificate of auditor to be published
four tim es in town or county where located. Each director m ust
own a t least ten shares of th e b ank’s stock. Bank m ay deal in real
estate only as is necessary to th e proper transaction of its business,
or in realizing upon securities. Directors m ust declare semi-annual
dividend o u t of net earnings, and a t same tim e m ake report to S tate
au d ito r of assets and liabilities, and publish once. Stockholders are
liable for banks’ debts to ex ten t of stock held by thém . Their
liability continues six m onths after a transfer of th e stock. Failure
to comply w ith requirem ents for sixty days forfeit franchise.
The to tal liability of any person, firm, corporation, or company to
any such bank for m oney borrowed shall a t no tim e exceed fifteen
per cent of paid in capital and perm anent surplus; this does not apply
to discount of bills of exchange draw n upon existing values or of com­
mercial paper owned bv person negotiating same.
Each such bank m ust keep on hand tunds equal to 20 per cent of
its im m ediate liabilities half cash and half balances due from solvent
bank. One hundred dollars to five hundred dollars penalty for
m aking new loans while reserve below th e proportion. Laws .provide
for s ta te exam iner, who visits and examines financial condition of
banks yearly. Banks charged certain fees for S tate exam iner fund.
Any employee, officer, or agent of any bank or person doing a bank
business, who reoeives deposits knowing or having reason to know
th a t such banking institution is unsafe or insolvent, is guilty of felony,
and IS liable to Im prisonment for one to twenty' years.
Banks m ay be dissolved by district court upon voluntary applica­
tion, or when declared insolvent by sta te exam iner. Saving bank
corporation m ay be organized w ith n ot less th a n $100,000 nor more
th a n $500.000 capital divided tnto shares of $100 each, $100,000 to
be subscribed in cash before beginning business. May do a general
deposit an d loan business. Stockholders liability to same extent as
in other banks.
i
Foreign banking corporations m ay establish branch banks in this
S tate upon compliance w ith certain special laws.
Bank is n o t liable for paym ent of forged or raised check, unless
claim is m ade w ithin one year after check is returned paid to deposi­
tor. (Session 1909.) Liable for non-paym ent of check w ithout
malice only to am ount of dam ages proven.
C o n tr a c ts . Contracts of conditional sale retaining title in vendor
m ust be filed with county clerk or are void as to bona fide purchasers,
m ortgagees or attaching creditors prior to filing.


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,w?»?n v e y a n c e *’ J TItl® t0 P roperty of any kind (except a mere
slbllity n ot coupled w ith an interest), including a right of re-entrv
breach of condition subsequent, and property In th e adverse do
of another, m ay be transferred. Deed to several persons, exrent tS
executors and trustees, creates tenancy in common, unless exnnw«i«
declared a joint tenancy in th e deed. The fee simple title
a grant, unless expressly lim ited to a less title in the deed CovZ
can ts th a t th e grantor has m ade no previous deed to any other
son, and th a t th e premises are free from incum brance by the ernntZl
or an y one claim ing under him are implied from use of word “¡roiiii"
A m arried woman Joining w ith her husband in any instrument
affecting real property is bound thereby the same as though stmril
if duly acknowledged b y her. Instrum ents affecting real proDertv
m ay, if acknowledged, be reoorded, and such record im parts nntili
to th e world. (See Acknowledgments.)
oilc®
C o rp o ra tio n s are form ed under th e general sta tu te, except bank­
ing, insurance and railroad corporations, and corporations not tar
profit, which are governed by special laws. Stockholders have one
vote for each share, m ay vote in person or by proxy, and m ay cumu­
late votes in director elections. Articles of incorporations filed in
county where principal office located, and copy filed with secretary of
S tate; m any hold only necessary real estate; from three to thirteen
directors, who m ay be empowered to m ake by-laws; m ay classify
directors; control business; stock issued for money or p ro p erty stock
liability lim ited to unpaid portion, directors assenting to creation of
debts beyond subscribed capital stock or making dividends out of
capital stock are jointly and severally liable therefor; stockholder mav
examine books; w ritten transfer or power of attorney to sell and
delivery of certificate passes title,-between parties and against creditorsm ay be attached on books of corporation. E very domestic corpora^
tion having a capital stock m ust file report in county clerk’s office
within tw enty days after December 31st of each year, showing amount
of capital stock, am ount paid in cash, and am ount paid in property
am ount of existing debts, and nam es and addresses of directors, presi­
dent, vice-president, general m anager and secretary; directors neglect­
ing to file are jointly and severally liable for debts existing during
failure to file; director m ay exonerate himself by filing within ten days
after default affidavit showing th a t during the tw enty days he asked
president or sufficient directors to file, and th a t default is not due to his
neglect.
Foreign corporations, except Insurance companies and corporations
otherwise provided for, m ay do business after filing with secretary
of sta te and in county where Intend to do business, copy of charter
and verified statem ent of president and secretary, showing name,
capital stock, am ount paid in m oney or property, assets and of what
consist, and their actual cash value, and am ount of liabilities; also a
consent to be sued and appointm ent of agent for service of prooess
and acceptance of same. M ust pay to Secretary of S tate filing fees
upon proportion of business and assets in M ontana to total business
and assets of corporation. If capital increased or diminished must file
certificate thereof w ith secretary of sta te and county clerk, and refusal
to do so forfeits right to do business in State. M ust w ithin two months
after April 1st, file report like verified statem ent ju st mentioned, in
county clerk’s office, and copy w ith secretary of state. Can have no
greater rights or privileges th an dom estic corporations.
Foreign corporations doing business in this S tate are m ade subject
to the jurisdiction of the courts of this S tate the same as domestic
corporations and their stock is m ade attachable in this S tate. (Ses­
sion 1909.)
*
C o u rts . D istrict courts have original jurisdiction in law and
equity where over $50 involved; have probate and crim inal Juris­
diction. City police courts.of p e tty crim inal jurisdiction. Justices
of peace lim ited to $300, p e tty criminal cases; cannot try title to land,
nor questions of constitutionality. Appeals lie from justice to dis­
tric t and from district to suprem e court. Suprem e court appellate
court of last resort, except has original jurisdiction in applications for
habeas corpus and sim ilar writs.
D ay s o f G race.
None.
D e p o s itio n s of resident m ay be taken when witness is a party In
interest, or resides o ut of th e county, or is about to leave and will
probably continue absent, or is too infirm to a tten d ; or th e testimony
is to be used on a motion, or when witness is only one who can estab­
lish a m aterial fact and his presence cannot be procured a t the trial.
E xam ination m ay be upon oral questions or by agreem ent upon
w ritten interrogatories. In case of non-resident within United States,
judge m ay issue commission upon five days’ notice, if parties do not
agree upon person, to any Judge, or justice or commissioner. If out
of U nited States, m ay be directed to a m inister, em bassador, consul,
vice-consul or consular agent of th e U nited S tates in such country,
or to such person as m ay be agreed upon. E xam ination of non­
residents unless otherwise agreed, m ust be by w ritten Interrogatories.
D e s c e n t. In testates’ real and personal jproperty, subject to pay­
m ent of debts, descends as follows: If widow or surviving husband
and one child, half to each; if widow or surviving husband, and more
th a n one child or one child and lawful issue of one or more deceased
child, one-third to husband or wife and tw o-thirds to suoh children
and issue per stirpes; if no child living, tw o-thirds to lineal descend­
ants, equally if of same degree, if not, per stirpes; if issue and no hus­
band or wife, whole estate to Issue if such issue consists of more than
one child living and lawful issue of deceased child or children, then
in equal shares to living children and issue of deceased children per
stirpes; if no issue, one-half to husband or wife and one-half to father
and m other In equal shares, or is either be dead, the whole half goes
to the survivor. If no fath er or m other one-half in equal shares to
brothers and sisters or their children per stirpes. If no issue nor
husband or wife, entire estate to father and m other equally, or to
survivor. If no issue father, m other, 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, m other, brother, nor sister, entire estate to husband or wife;
if none of above m entioned, to next of kin in equal degree, claiming
through nearest ancestor; if leaves more th an one child, or one ana
th e issue of one or more deceased children, and any such child die
unm arried under age, his share goes to children of same paren t or
th eir issue per stirpes. If no husband, wife or kindred, the property
escheats to S tate. Illegitim ate child is heir of person who acknowl­
edges himself, in writing before a com petent witness, to be its father
ana is an heir of his m other; If parents interm arry, is legitimatized.
D o w er. Curtesy abolished. Wife endowed of third of lands
owned by husband during m arriage. E quitable estates and contracts
included. No dower in lands m ortgaged for purchase price as against
mortgagee, nor in lands conveyed to him by way of mortgage unless
he acquire absolute title during lifetim e, Devise or bequest bars
widow’s dower unless otherwise expressed In will, b u t she m ay elect
between devise or bequest and dower, within one year in writing.
If husband die leaving no children nor descendants of children, widow
m ay have, absolutely, one-halt of all his estate after paym ent of
debts, if she elect w ithin two m onths after paym ent of debts. A
woman m ay be barred of dower by jointure with her assent before
m arriage, consisting of freehold in lands of life, a t least, beginning at
death of husband. Dower is n o t affected except by wife’s deed.
E x e c u tio n unless stayed by order of court, m ay Issue a t once upon
rendition of Judgm ent; becomes lien on personalty upon seizure by
officer holding w rit. All property sold to highest bidder Defendant

BANKING AND COMMERCIAL LAWS—MONTANA
or creditor m ay redeem from sale of real estate within year, or sixty
days after previous redem ption.
E x e m p tio n s . To head of family, hom estead 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, a t
$200, all necessary household goods and certain domestic anim als and
provisions for three m onths; forty-five days earnings exem pt where
necessary for support of family, except one-half such earnings m ay
be taken for debts for necessaries. Generally, tools and implem ents
of trade, libraries, etc., of professional men who are heads of families,
are exempt.
F ra u d . I t is crim inal fraud to a ttem p t to obtain Insurance money
wrongfully; or fraudulently, destroys insured property; to issue, sell,
transfer or pledge any false, fraudulent or sim ulated stock certificate
or evidence of shares of any corporation, or any officer to sign any
such certificate; unauthorized use of another’s nam e in selling stock;
for a director, officer, or agent of corporation to publish false report
of its affairs; to falsely represent one’s self as com petent to sell or
mortgage reail 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 Bold or
agreed in writing to sell th e 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 an y property for which a warehouse
receipt has been issued; for the m ortgagor to dispose in any m anner
of any property covered by chattel m ortgage. Any negotiable instru­
ment procured by fraud or circum vention to be executed is void even
in hands of innocent holder.
F ra u d s, S t a t u t e of. Agreem ent of executor or adm inistrator to
answer for obligation of decedent o ut of his own estate; agreem ent
not to be performed In one year; promise to answer for obligation of
another, unless it is m ade an original obligation of prom issory; an
agreement upon consideration of m arriage, except m utual promise to
marry; for sale of personalty a t a price of over $200, unless p a rt of
price paid or p a rt of goods accepted, except a t auction sale when
auctioneer enter sale in sale book; lease for over one year; for sale of
realty, or authorizing broker or agent to sell land for compensation;
Is void unless in writing signed by p arty to be charged or his agent
duly authorized (in writing In case of agreem ents affecting real estate).
Every transfer of property, or charge thereon m ade, every obligation
Incurred, every Judicial proceeding taken, and every a ct performed,
with Intent to delay or defraud any creditor, or other person, of his
demands, is void against all creditors of the debtor and tneir represen­
tatives or successors in interst, and against any person upon whom
the estate of th e debtor devolves in tru st for the benefit of others th an
debtor. All declarations of tru st in lands shall be In writing, except
resulting tru sts or tru sts created by im plication or operation of law.
H u s b a n d a n d W ife. H usband m ust support wife it able; if not,
she m ust assist; husband has no curtesy; wife has dower; neither
can be excluded from others dwelling; m ay contract w ith each other,
or any other persons, th e sam e as though unm arried; cannot alter
legal relation by contract, except m ay agree to im m ediate separation,
mutual consent being sufficient consideration; m ay hold property
jointly or in common; wife m ay sue and defend alone; all property of
wife is her separate property, and she can convey, or execute power of
attorney thereon w ithout husband’s consent. H er deed m ust be
acknowledged. Filing inventory of her personal property exempts
same from claims against husband, except for necessaries for herself
and her children. Wife m ust support husband out of her property
if he Is infirm. Wife m ay dispose of her property by will, except th a t
such will m ust not, w ithout his w ritten consent, deprive husband of
over two-thirds of her real estate or tw o-thirds of her personal property;
wife m ay m ake contract, etc., th e same as though single. If husband
neglect to support his wife, bills for necessaries sold her can be collected
from him, b u t not when separated by consent, unless support stipu­
lated in such agreement.
'
I n te r e s t. E ight per cent on judgm ents and damages. In other
cases 8 per cent in absence of agreem ent. M ay contract for not more
than 12 per cent per annum .
J u d g m e n t of courts of reoord (including federal courts of county)
it transoript of such judgm ent If filed id district court are lien on
realty in county for six years; realty in another county becomes sub­
ject to Hen upon filing of transcript of judgm ent in such county.
Abstract of justice court Judgm ent becomes lien on realty In any
county where filed In district court.
L iens. Laborers an d m aterialm en have lien, for labor or m aterial,
on property, Must file In couty clerk’s office w ithin ninety days
and suit m ust be brought w ithin a year after filing. Hotel, boarding,
and lodging house keepers have lien on baggage of guests brought
into such house. One performing service with respect to personal
property, including feed and care of anim als, has a lien upon such
personalty or animals. Person furnishing another seed grain has lien
upon crops produced thereby up to 700 bushels, to secure paym ent of
purchase price. Verified lien m ust be filed in the office of the Clerk
and Recorder. Such lien is prior to all other encumbrances.
Threshermen have lien upon crops threshed for services in threshing
subject only to seed Hen. Verified lien m ust be filed in the office
of the Clerk and Recorder.
L im ita tio n s o f A c tio n s. Action upon judgm ent of any court of
record, action to redeem from m ortgage when mortgagee is In posses­
sion, ten years: actions for recovery of real estate or mesne profits
thereof, ten years, b u t in such cases sta tu te does n ot run against
erson who a t th e tim e title first descends or acorues is a minor, or
isane, or Imprisoned on criminal charge for less th an life, until suoh
disability ceases: upon contract, account or promise in writing,
eight years; to establish lost, concealed, or destroyed will, or upon a
judgm ent of a court n o t of record, five years; against sheriff, ooroner,
or constable for breach of official duty, action for damages for wrongful
death, o r for obligation n o t in writing, other th a n a oontract, account
or promise, three years; upon sta tu to ry liability for waste or trespass,
detainer of o r injury to chattels, for relief on ground of fraud or mis­
take, or for libel, slander, assault, battery, false im prisonm ent or
seduction, two years. Against a sheriff or other officer for escape of
civil prisoner; against m unicipality for violation of ordinance, against
officer for money o r property taken as such, and against railroad for
stock killed or injured', one year; to recover stock sold for delinquent
assessment, and actions against a county after rejection of claim by
county commissioners, six m onths.
„
All cases n o t specifically m entioned, five years. S tatu te does n ot
run during absence of defendant from this S tate.
L o an s. Farm ers loan departm ent established.
M a rrie d W o m e n . (See H usband and Wife.)
M o rtg a g e s of real estate are executed sam e as deeds. H usband
and wife m ust join to b ar dower or hom estead, except purchase money
mortgages. Non-judicial sale under power valid. Lieh good for
eight years a fte r'm a tu rity of debt, and m ay be renewed by affidavit
for eight years more. As to any m ortgage now existing as_ to which
eight years or more has elapsed same m ay be renewed for eight years
by filing affidavit in six m onths from F ebruary 17, 1913.

g


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Federal Reserve Bank of St. Louis

1607

Chattel m ortgage m ust be duly acknowledged, an d be accom panied
by affidavit of m ortgagee th a t sam e is m ade in good faith and n ot to
hinder, delay, or defraud creditors; n ot vaUd except between parties
until filed in county where property is situated. Lien good until
m aturity of debt n ot exceeding tw o years and sixty days. M a y be re­
newed by filing affidavit within sixty days after expiration of two
years, stating am ount still due, and alleging good faith, etc.
N eg o tia b le I n s t r u m e n t s . M ust be payable in money and m ust
contain an unconditional promise to pay a sum certain on dem and or
a t a fixed or determ inable future tim e ¡must be payable to order or
to bearer; m ay be in installm ents and contain provision th a t on an y
default the whole shall become due; with exchange fixed or current
rate, interest and atto rn ey ’s fees for collection m ay authorize sale
of collaterals and confession of judgm ent; if it reads “ I prom ise to
pay” all signers are jointly and severally liable m ay be payable a t
fixed tim e after date or sight, or after specified certain event, b u t h o t
upon a contingency; need not specify value given nor place where
draw n or payable; if issued, accepted, or endorsed when overdue it is
payable on dem and; m ay be payable to two or more payees jointly,
or one or more of several payees; absence or failure of consideration a
defense against one n ot a holder in due course and partial failure a
defense pro tan to . One not a p a rty to instrum ent placing a signature
In blank before delivery becomes an endorser. Every endorser
engages th a t on due presentm ent it shall be honored or th a t he will
pay th e am ount to holder or any subsequent endorser who m ay be
compelled to pay; no days of grace; when m atu rity falls on Sunday
or holiday payme'nt is due on next business day; if due on S aturday
m ust be presented on next business day, b u t if payable on dem and
holder m ay present same before noon on S aturday. F raud and cir­
cum vention in procuring execution of Instrum ent Is a defense against
any holder.
Presentm ent. I t is not necessary to charge one prim arily liable if
payable a t special place ability and willingness to pay it th ere a t
m atu rity is equivalent to a tender; if not on dem and it m ust be pre­
sented on day It falls due, if on dem and then within a reasonable tim e
after its issue, exoept a bill of exchange m ust be presented within
reasonable tim e after its last negotiation.
Alterations. F raudulent or m aterial, do n ot affect original instru­
m ent in hands of innocent holder in due course.
Acceptance. Unconditional promise in writing to aooept a bill
before or after drawn is good In favor of all who take it upon faith
thereof for value. The holder m ay decline a qualified acceptance and
tre a t the bfil as dishonored; if he takes qualified acceptance drawer
and endorsers are discharged, unless they consent thereto.
Protest, of foreign bills m ay be m ade by notary public or by any
respectable resident of the place in presence of two or more credible
witnesses; bill of exchange does n ot operate to assign funds in bantf^
of drawee and he is not liable unless he accepts.
Promissory Note. Must be unconditional promise in w riting to
pay on dem and or a t fixed or determ inable tim e a sum certain in
money to order or bearer, and where drawn to m aker’s own order Is
not complete until endorsed by him ; m ay be in installm ents.
A Check is a bill of exchange on a bank payable on dem and; m ust
be presented within reasonable tim e after issue and if dishonored
notice m ust be given or drawer is discharged to the extent of loss
caused by delay; does n ot operate to assign any p art of d raw ers
funds In bank and bank is n ot liable unless it accepts or certifies. H
holder has check certified the draw er and endorsers are discharged.
The present negotiable instrum ent law of M ontana consisting of
198 Sections went into force March 7, 1903. Its provisions do not
apply to Instrum ents m ade prior thereto. The act so m aterially
changes the law In this S tate as to suggest the propriety of special
exam ination in any doubtful case.
This law is nearly if not quite identical with th a t now in force is
.New York, Illinois, and Other states.
R e p le v in . The plaintiff in an action to recover possession of per­
sonal property m ay replevy the same a t the tim e of issuing summons
or a t any tim e before answer, upon making affidavit showing th a t the
plaintiff is the owner of the property or entitled to possession thereof;
th a t it is wrongfully detained, and has not been taken for a tax ,
assessment or fine pursuant to a sta tu te or seized under an attachm ent
or an execution against the plaintiff; or if so seized th a t it Is exem pt;
and also stating the actual value of the property. A dem and for the
delivery of the property should be indorsed upon the affidavit and a s
undertaking in double the value of the property m ust be given.
The defendant has two days in which to except to plaintiff’s sureties,
or he m ay require the return of the property by giving an undertaking
in double the value of the property. If such undertaking is not given
within five days from the replevy the property m ust be turned over
to the plaintiff.
T axes. All kinds of property, except public property and property
for beneficent purposes, are subject to ta x for public purposes only.
Such taxes are a lien upon th e 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 new spaper on or before the
last Monday of each year, ana in n ot less th an tw enty-one and n ot
more th an tw enty-eight days after the first publication sale of the
real estate is made, subject to redem ptiion w ithin thirty-six m onths
from date of sale. The purchase money draws interest a t 1 per cent
a m onth from the date of sale. The purchaser is entitled to a tax
deed a t the end of the thirty-six m onths b u t m ust give th irty days*
notice to the owner or occupant of the property. Taxes are assessed
to the p arty in whose nam e the property stands of record on th e first
Monday in March of each year. An inheritance ta x of $5 for every
$100 worth of property m ust be paid by anyone, n ot a blood relation,
inheriting such, property; and blood relations and adopted children
pay a ta x of $1 for $100 w orth of property Inherited. E states under
$7,500 not liable for inheritance tax.
Redem ption m ay be m ade before deed by paym ent of taxes, 10 per
cent penalty, 50 cents for publication, and interest a t 1 per cent per
month.
Action to annul tax deed m ust be brought in two years after date
of issuance. [Session 1909.]
W ills. Every person over eighteen years a t age and of sound m ind
m ay dispose of all his estate, real and personal, by will. All wills,
except nuncupative, m ust be in writing. And all wiUs, except nun­
cupative and holographic, m ust be executed and attested as follows:
1. Must be subscribed by th e testa to r himself, or sone one in his
presence and by bis direction, m ust subscribe his nam e thereto. 2.
The testato r’s signature m ust be m ade in the presence of th e attesting
witnesses or acknowledged to have been m ade by him or by his author­
ity. 3. The testa to r m ust declare to th e attestin g witnesses th a t
the instrum ent is his will. 4. There m ust be two attestin g witness«:
who m ust sign th e will a t the testa to r’s request, in his presence. An
holographic will is one entirely w ritten by the testa to r himself and
subject to no form. The estate bequeathed by a nuncupative will
m ust n ot exceed $1,000 in value, m ust be proved by two witnesses,
m ust have been m ade In actual contem plation, fear, or peril of death,
and m ust be proved within six m onths after stating th e testam entary
words unless the substance thereof was reduced to w riting w ithin
th irty days after they were spoken. A wUl executed according to
law of tho S tate where the testa to r was then domiciled m ay be pro­
bated in this State.

1608

BANKING AND COMMERCIAL LAW S—NEBRASKA
register of deeds office, a n d w ithin th irty days it shall be recorded in
any other county where property conveyed be situated. A oredlhS
m ay file and prove a claim and concurrent therew ith, m ay nura«« »
separate rem edy against th e assignors for the collection of such daim
Conveyances, preferences, paym ents, pledges or transfers of proDertv
m ade by an insolvent debtor in contem plation of such in so lv en t
within th irty days prior to m aking an assignm ent, are void, excent
th a t the assignor m ay pay or secure clerks or servants* wages untexceeding $100 to any one person, and m ay pay or secure a n v ’deht
created w ithin nine m onths prior to th a t tim e and m ay secure
debt contracted sim ultaneously with th e giving of such security
'
Assignments of wages of head of fam ily void unless executed’ and
acknowledged by husband and wife.
a

SYNOPSIS OF

T H E L A W S OF N E B R A SK A
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by M o n t g o m e ry . H a l l & Y o u n g , A ttorneys a t Law, Omaha
(See Card In A ttorneys’ List.)
A ck n o w le d g m e n ts. (See Deeds) m ay be m ade 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 nam e of his principal, secretary of state,
under seal, if the officer have one. I f acknowledgment taken in any
o th e r s ta te or territory, it m ust be in accordance w ith th e laws of
this S tate or o f th e sta te or territory where taken, and m ust be before
some court of record or clerk or officer holding seal thereof, or a
commissioner of deeds appointed by th e governor of this S tate for
th a t purpose, or notary public, or justice of peace; if before justice
acknowledgment m ust be accompanied by certificate
of his official character under hand of clerk of some court of record
to which th e seal of such court shall be affixed. I f th e officer have
se a t th en th e acknowledgment m ust have attached thereto a
certificate of th e clerk of a court of record, or other proper certifying
officer of th e district or sta te where taken, under th e seal of his
O™®®' showing th a t th e person taking the acknowledgment was
a t th e d ate thereof, such officer as he is therein represented to be,
th a t he is well acquainted w ith the handw riting of such officer; th a t he
believes th e said signature of th e officer to be genuine, and th a t the
deed or o th er instrum ent is acknowledged in accordance w ith th e laws
of such state, district, or territory. If acknowledgm ent taken In a
foreign country» it m ay be acknowledged before any n otary public,
m inister plenipotentiary, extraordinary or resident, chargé d ’affaires,
commissioner, commercial agent or consul of th e U nited S tates. In
executing acknowledgment, notaries public m ust w rite in the date
when th eir commission expires or else said date m ust be im printed on
th eir seals.
A c tio n s . M ust be" brought by real p a rty in Interest, except as to
adm inistrator, trustee, etc. However, assignees of choses in action
assigned for purpose of collection m ay sue on an y claim assigned in
writing; b u t such assignees m ust give security for costs. Non-resident
plaintiff m ust give security for costs.
A d m in is tr a tio n o f E s ta te s . (See Decedents.) County courts
have exclusive jurisdiction over estates. A dm inistration is granted
to widow or n ex t of kin, or both, or some one selected by them ; b u t if
unsuitable, or if they fail for th irty days after d eath of a p a rty to apply
to r letters, sam e m ay be issued to a creditor, or to some one selected
by th e Judge. E xecutors and adm inistrators m ust give bond, as
required by th e court, and m ust, w ithin three m onths after appoint*
m ent, m ake report of all property belonging to deceased. General
letters of adm inistration are only Issued after due notice to parties
interested, and if case is urgent a special adm inistrator m ay be ap­
pointed, who shall m ake report within tw o weeks. Personally is dis­
posed of under direction of th e county court, b u t to sell real estate,
license m ust be obtained from the district court. D ebts of decedent
are a lien Upon all real estate. I f no adm inistration within two years
any heir of deceased or any person having acquired real estate from
deceased or heirs m ay obtam from county Court determ ination of
heirs of deceased degree of kinship and right of descent of real property
of deceased.
J
A ffid av its. (See Depositions.) Affidavits m ay be m ade before
anyone authorized to take depositions, and m ust be subscribed In
presence of th e officer and sworn to before him , and this fact m ust be
stated in th e affidavit. If m ade o ut of S tate and th e officer has no seal,
affidavit m ust have attached thereto a certificate of clerk of a court
reciting a u th o rity of such officer.
A lien s. « Non-resident aliens and foreign corporations m ay n ot own
or hold real estate in Nebraska, b u t th e widows and heirs of such »n«r«
who held lands prior to March 16. 1889, nave ten years to dispose of
th eir interests, and those who acquired th eir ownership prior to th a t
d a te m ay dispose of same during th eir life. If n ot so disposed of, the
lands escheat to the S tate. However, non-resident aliens m ay acquire
a lien upon real estate, an a, pursuant or subsequent to such, m ay pur­
chase such real estate, b u t shall dispose of same w ithin ten years from
tim e of acquiring title. These provisions do n ot apply to railroads nor
to real estate upon which buildings are erected an a m aintained for
m anufacturing purposes, nor to th a t, w ithin th e corporate lim its of
«¿ties and towns. ►
Aliens who declare th eir intention to become citizens
of th e U nited S tates th irty days before an election, conform ably to the
laws of th e U nited States on subject of naturalization, are electors,
same as citizens.
A r b itr a tio n . Instead of subm itting a controversy to a court,
parties m ay agree in Writing to arbitrators, whose decision, after confir­
m ation by th e court, shall stand as a verdict. Judgm ent m ay then
be entered and execution issued.
A rre s ts . A rrest and im prisonm ent In civil actions for debt are
abolished.
A s s ig n m e n ts . (See Exem ptions, Acknowledgments.) Every
assignm ent for benefit of creditors shall be m ade to the sheriff of the
county, and shall include all property of th e assignor, except such as
m ay be exem pt. Assignments shall be executed and acknowledged
th e same as a deed to real estate, and within tw enty-four hours after
Its execution shall be filed for record in the county clerk’s office, and
U real estate is m entioned therein. It shall also be recorded in the


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A tta c h m e n ts . T he plaintiff a t or after th e commencement of an
action m ay have an attachm ent against th e defendant’s pronertv
when the am ount is due, by filing an affidavit showing any of thè
following grounds; 1. T h at th e defendant is a foreign corporation
or non-resident of the State. 2. Has absconded w ith intent to
defraud creditors. 3. H as left th e county of his residence to avoid
the service of summons. 4. So conceals himself th a t a summons
cannot be served upon him. 5. Is about to remove his property'
or a p a rt thereof, out of th e jurisdiction of the court with the intent
to defraud iuS creditors. 6. Is about to convert his property or
p art thereof into money for th e purpose of placing it beyond’ the
reach of his creditors. 7. Has property or rights in action which he
conceals. 8. Has assigned, removed, or disposed of, or is- about to
dispose of his property, or a p a rt thereof, with intent to defraud his
creditors. 9. Fraudulently contracted th e debt or, incurred the
obligation for which suit is brought. The affidavit m ust further
show, the nature of plaintiff’s claim, th a t it is ju st 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-resiuent o f th e S tate b u t in such cases no attachm ent can be had for claim
other than debt or dem and arising upon contract, judgm ent or decree
unless plaintiff has been bonaflde resident of sta te for six months
preceding filing of petition. In all other cases plaintiff m ust give an
undertaking m double th e am ount of his claim. I f property cannot be
seized by th e officer it m ay be reached by garnishm ent process. To
obtain attachm ent in an actión n ot founded on contract, original
petition m ust be presented to judge of supreme, district or county
court who shall m ake an allowance thereon of th e am ount in value
of th e property th a t m ay be attached, and the am ount of bond if
any, to be given by plaintiff.
B a n k in g . Only N ational banks and sta te banks which are in­
corporated under the laws of Nebraska, can transact banking busin?s s ,, re- S tate banking board has general supervision and control
of all sta te banks. E very sta te bank m ust obtain charter from
this board. B oard appoints examiners who investigate affairs
oi eacn bank a t least twice a year. After each examination bank
m ust pay to sta te treasurer fee of $15 to $50, according to capital,
n o t, r^cìr-e^Ìi.an
fees fQ one year. Savings banks m ust have at
least $15,000 capital; if in city of 50,000 to 100,000, $35,000; 100,000
or more, $75,000. O ther banks m ust have capital as follows: Mini­
mum, $10,000; in town of 100 to 5 00,\ 15,000; 500 to 1,000, $20 0001,000 to 2,000, $25,000; 2,000 to 5,000, $35,000; 5,000 to 25.000’
$50,000; 25,000 to 100,000, $100,000; 100,000 or more, $200,OOO!
Such capital shall be in money, credits.national, state, county or munmipal bonds, bank furniture, and the bank building and ground on
which situated, which ground shall be unincumbered, b u t in no case
shall the bank building and ground, together w ith furniture and fix­
tures, exceed in value one-third or th e furniture and fixtures alone
Per cent or th e national, state, county and municipal bonds oneof th e half paid-up capital. Before commencing business the bank shall
m ake a detailed statem ent of the proposed business to th e banking
board, which, after approval, shall issue a charter. Every bank must
m ake a t least quarterly detailed reports under oath, showing the
am ount loaned upon bonds and mortgages, am ount loaned upon notes,
bills of exchange, overdrafts, and o ther securities, w ith th e actual
m arket value thereof, th e am ount of rediscounts and of commercial
paper p ast due, th e am ount invested in real estate, a t cost, tho amount
of cash on hand and on deposit in banks or tru st companies, w ith their
nam es and the am ount deposited in each, and th e am ount of all other
assets, together w ith such o ther inform ation as th e banking board may
require. A sum m ary of such report m ust be published in some local
newspaper and proof of such publication transm itted to th e banking
board, and such board m ay call for special reports a t any tim e. Fail­
ure to m ake reports entails a penalty of $50 for each day’s delinquency,
and those m aking false statem ents in such reports or In the books of
the bank m ay be.punished as felons. I t Is likewise a felony for a bank
to receive moneys or perm it same to be received on deposit when the
bank is insolvent; to loan to an officer or employe of the corporation
w ithout th e approval of a m ajority of th e directors; to carry as assets
any note or obligation of th e partnership, m em ber thereof, or individu­
al, where such partnership or individual do a banking business; to
perm it shareholders, where th e bank is a corporation, to become in­
debted in a sum exceeding 50 per cent of the paid-up capital of such
bank. E very stockholder is liable for debts accruing during his
ownership of stock, for an am ount equal to th e paid-up value of the
shares held, and all shares of stock are assessed in the place where tho
bank is located, w hether th e owners thereof reside there or not, and
taxes are a lien upon the stock. A guaranty fund is provided by
assessments on all sta te 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 th an savings bank
sbafi n ot perm it loans and investm ents, exclusive of reserve and
banking-house and fixtures to exceed ten tim es am ount of capit
and surplus. All sta te banks in cities of over 25,000 m ust keep a
reserve of 20 per cent. Rediscounts and bills payable m ust not ex­
ceed paid up capital and surplus except for paym ent of depositors.
State banks and tru st companies m ay become members of federal
reserve bank. I t is unlawful to bid or solicit for purchase of bank
stock above par until banking csrporation organized and actually
engaged m banking business.
B ills o f E x c h a n g e . (See Notes and Bills of Exchange.) \
B lu e S ky L aw . (See Corporations.)
B u lk S ales. (See Sales.)
C h a tte l M o rtg a g e s . E very chattel m ortgage, if n ot accompanied
by an im m ediate delivery of th e goods and be followed by an actual
and continued change of possession thereof, is absolutely void as"
against creditors of th e m ortgagor and as against subsequent pur­
chasers and m ortgagees in good faith, unless Ruch m ortgage, or a copy
thereof, be filed in th e county clerk’s office wnere th e m ortgagor resides,
and if he be a non-resident, th en in the clerk’s office of th e county
where th e m ortgaged property be situated. Such chattel mortgage
need n ot be acknowledged unless it convey household goods used In
the family by the husband and wife, or either, in which case it m ust be
signed and acknowledged by both husband and wife, th e same as real
estate conveyances. Verbal mortgages are good between the parties,
i t is a felony to transfer or dispose of personal property mortgaged
w ithout procuring th e consent of th e m ortgagee, or to remove same

BANKING AND COMMERCIAL LAWS—NEBRASKA
out of th e county with Intent to detraua the mortgagee of his security
Mortgagor required to give accounting for mortgaged property from
time to tim e on dem and of mortgagee, and to give m ortgagee notice
in writing w ithin 10 days after loss or death of mortgaged articles
or animals.
C laim s. (See Accounts, A dm inistration of E states.)
C o m m e rc ia l T ra v e le rs . (See .Licenses.)
C o n d itio n a l S ales. A sale or lease of personalty m ay be m ade
and title thereto retained In the vendor until the purchase price be
fully paid, or condition complied with, by having th e contract of sale
or lease In writing signed by the vendee or lessee, and then tiling copy
of same in th e county clerk’s office, with affidavit of vendor, his agent
or atto rn ey attached thereto, giving names and full and true Interest
of parties and description of the property. Such sale or lease shall be
Invalid a t expiration of five years as against purchasers In good faith,
or Judgment or attach in g creditors, unless the vendor or lessor shall,
within th irty days prior to th e expiration of the five years, repeat the
filing, which m ust be m ade annually thereafter. These sales are valid
as between th e parties and as against judgm ent or attaching creditors
and subsequent purchasers and m ortgagees with notice.
C o n s ig n m e n ts . I t Is a felony on the p art 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 advancem ent upon the shipm ent, to sell or transfer
such goods contrary to the agreem ent between him and the consignee.
C o n tra c ts . Every contract for the purchase or sale of real estate or
any interest therein, except a lease for a period n ot exceeding one year
from th e m aking thereof, m ust be in writing and subscribed by the
party to be charged. Every agreem ent by its term s not to be per­
formed within one year from the m aking thereof, every special promise
to answer for th e debt, default or misdoings of another, every agree­
ment, promise, undertaking m ade upon consideration of m arriage,
except m utual promise to m arry, and every special promise of an
executor or adm inistrator to answer damages out of his own estate,
and every contract for th e sale of goods and things in action, for
the price of $50, or more, shall be void unless note or memorandum
be m ade in w riting by the p arty 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 p a rt of the purchase price thereof is paid, or a
part of th e goods and chattels are delivered, to the buyer, no m emoran­
dum is necessary. (See S tatu te of Fraud.)
C o n v e y a n c e s. (See Deeds, Mortgages, Conditional Sales.)
C o rp o ra tio n s. (See Foreign Corporations.) Any num ber of per­
sons m ay associate and incorporate for the transaction of any lawful
business, including th e construction of canals, railways, bridges, and
other works of internal im provements. Every corporation, as such,
has power: 1. To have succession by its corporate nam e. 2. To
sue and be sued, to complain and defend in courts of equity and law.
3. To m ake and use a common seal and alter the same a t pleasure.
4. To hold personal estate and all such real estate as m ay be necessary
for th e legitim ate business of the corporation. 5. To render all
interest of th e 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 w ith any existing law, for the m anage­
ment of Its afialrs. Every corporation previous to the commencement
of an y business, except its own organization, when the same is not
formed by legislative enactm ent, m ust adopt articles of Incorporation
and have them filed in th e office of th e secretary of state; and domestlo
corporations m ust also file with th e county clerk in the county where
their headquarters are located. Banking corporations and building
and loan associations m ust also file w ith S tate Banking Board. In ­
surance companies, holding companies and all companies under con­
trol of sta te auditor m ust also file with th a t departm ent. The ar­
ticles of incorporation m ust fix the highest am ount of indebtedness
of liability to which th e corporation shall, a t any one time, be sub­
ject, which m ust in no case exceed two-thirds of the capital stock.
(Exceptions m ade for insurance companies, deposits in banks, loan
and tru st companies.) M ust incorporate within one year after
organization, or power ceases. Notice m ust be published in some
newspaper near th e principal place of business, for four weeks. Such
notice shall contain: 1. The nam e of the corporation. 2. The
principal place of transacting its business. 3. General nature of
the business to be transacted. 4. T he am ount of capital stock author­
ized, and th e tim e and conditions on which it is to be paid in. 5.
The tim e of commencement and term ination of said corporation.
6. Highest am ount of indebtedness or liability to which corporation
is a t any tim e to subject itself. 7. By w hat officers the affairs of
the corporation are to be conducted. The notice required m ust
be published within fo u r m onths from th e tim e of filing such articles.
Two-thirds of its members m ay dissolve corporation unless other­
wise adopted in articles of incorporation. Copy of by-laws of the
corporation, with th e nam e of all the officers appended there
must be posted in some conspicuous place 0,t the place of doing busi­
ness, subject to public inspection. Shall give notice annually, in
some newspaper printed in th e county or counties, or in State if
none in th e county, of th e am ount of all existing debts of th e cor­
poration, signed by th e president and a m ajority of the directors. If
corporation shall fail to do so, stockholders of corporation shall be
jointly and severally liable for all the debts of the corporation after
exhausting its assets, and for all debts contracted before said notice
is given, to th e am ount of th e unpaid individual subscription of any
stockholder to capital stock, and in addition thereto the am ount of
capital stock owned by such individual.
All corporations, whether incorporated under laws of Nebraska or
any other S tate, m ust procure a sta te occupation perm it from secre­
tary of state, annually, before they m ay do business here. Annual
fees for such perm it as follows based upon capital stock or iii»me
companies, or on th a t portion of capital stock of foreign companies
which represents N ebraska business: C apital of $1,000 to $10,000,
fee of $5; $10,000 to $20,000, $10; $20,000 to $30,000, $15; $30,000 to
$40,000, $20; $40,000 to $50,000, $25; $50,000 to $60,000, $30;
$60,000 to $70,000, $35; $70,000 to $80,000, $40; $80,000 to $90,000,
$45; $90,000 to $100,000, $50; $100,000 to $125,000, $60; $125,000
to $150,000, $70; $150,000 to $175,000, $80; $175,000 to $200,000, $90;
$200,000 to $225,000, $100; $225,000 to $250,000, $110; $250,000 to
$275,000, $120; $276,000 to $300,000, $130; $300,000 to $325,000,
$140; $325,000 to $350,000, $150; $350,000 to $400,000, $160; $400,000 to $450,000, $170; $450,000 to $500,000, $180; $500,000 to
$600,000, $200; $600,000 to $700,000, $250; $700,000 to $800,000,
$300; $800,000 to $900,000, $350; $900,000 to $1,000,000, $400;
$1,000,000 to $10,000,000, $400, and $75 additional for each million
or fraction thereof over $1,000,000; $10,000,000 to $15,000,000,
$1,200; $15,000,000 to $20,000,000, $1,500; $20,000,000 to $25,000,000
$2,000; over $25,000,000, $2,500. These fees, taxes and penalties
are first lien on all property of th e corporation. Fee for domestic
corporations payable Ju ly 1st. for foreign corporations, during m onth
of July. Fifteen per cent penalty for 30 days delinquency after
3 m onths wilful default, attorney general on request of secretary of
sta te m ust bring action to forfeit charter. Foreign corporation
m ust appoint resident agent on whom process m ay be served.
B lu e Sky L aw , prohibits sale of m ost corporate securities except
upon perm it by S tate Railway Commission. Detailed sworn
statem ents required. P erm it fee, $25, first year. $10 year thereafter
for each agent, one perm it, one dollar per year.. State railway com­
mission investigates and gives inform ation b u t does not recommend
securities. P ar value of stocks m ust be hot less th an $10.

Costs.

(See Security for Costs.)

102

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Federal Reserve Bank of St. Louis

1609

C o u rts. (See Actions,, Appeals.) Juvenile courts are established
for .treatm ent and control of dependent, neglected and delinquent
children. Justice and county courts are for all practical purposes,
open a t all tim es except holidays; b u t their jurisdiction is lim ited.
District courts have general jurisdiction, and have exclusive juris­
diction in certain cases. The term s of the district court in each
county are fixed by the presiding Judge a t the beginning ol each year.
The supreme court has original jurisdiction in a few cases provided by
statute, b ut its work is principally confined to reviewing decisions of
the district court.
C u rte s y . Abolished 1907. (See Decedents.)
D ay s of G race. (See N otes.).
D e c e d e n ts. (See A dm inistration of E states.) If a p arty leaves
no will his property descends subject to his debts as follows:
1.
One-fourth to the husband or wife, if survivor is n ot 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 m other or
survivor. 6. If no issue nor parents, in equal shares to brothers
and sisters and children of such deceased, by representation. 7. If
no parents nor brothers nor sisters, to next of kin in equal degree,
b ut where there are two or more collateral kindred in equal degree,
b ut claiming through different ancestors, those claiming through
nearest ancestor are preferred to those more remote. Provision is
also made for surviving children dying under age unm arried. Claims
against estates m ust be presented within tim e fixed by probate court,
of which notice is given by advertisem ent, and is not less th a n six
m onths nor more th an two years after letters of adm inistration Issue.
Dower and curtesy are abolished.
D eeds (See Acknowledgments, Married Women) m ust be signed
In presence of one witness and acknowledged. G rantor’s seal n ot
required. _ Deed conveys all interest of the grantor, unless a contrary
m tention is expressed. Deeds and conveyances m ust correctly sta te
actual consideration, where it exceeds $100.
D e p o sitio n s m ay be taken a t any tim e after service of summons,
and m ay be used as evidence only when the witness does n ot reside in
the county of trial or is absent therefrom , or is unable to atten d court,
or is dead, or when w ritten testim ony is required instead of it being
oral; m ay be taken before various officers, b u t are usually taken before
a notary public. The officer m ust not be a relative or the attorney of
either party or otherwise Interested in the event of th e action, and this
fact should be stated in his certificate attached to the deposition. If
taken out of the S tate, and the officer has no seal, a certificate under
the great seal of the S tate, or of a clerk of a court of record under seal
should be appended, stating th a t the officer was, a t the tim e of taking
the deposition, properly authorized.
, D e s c e n t a n d D is tr ib u tio n . (See Decedents.)
D istre s s fo r R e n t. No au th o rity for it.
D ow er. Abolished 1907. (See Decedents.)
E m p lo y ers L ia b ility A ct, in force. Applies to employers having
five or more employes. Provides for medical and hospital services
and medicines, and schedule of benefits payable weekly. M axim um
for death, $4,200.
E s ta te s . (See Decedents.)
E x e c u tio n s (see Judgm ents, Proceedings in Aid of Execution
Mortgages) m ay issue a t an y tim e after Judgm ent, if no sta y bond
be filed, and until five years thereafter. L and sold upon execution or
decree of court m ay be redeemed by the debtor a t any tim e before
confirmation of such sale. A stay of execution is allowed by giving
bond with approved sureties as follows: In district court within
tw enty days, on judgm ents n ot exceeding $50, three m onths; $50 to
$100, six m onths; exceeding $100, nine m onths. In Justice and
county courts, w ithin ten days, as follows: $10 or under, stay of
sixty days; $10 to $50, ninety days; $50.to $100, six m onths; over
$100, nine m onths.
E x e m p tio n s . A head of a fam ily has exem pt from levy an d sale
certain personal property and household furniture enum erated in the
statute, and in addition thereto has exem pt a hom estead not exceeding
in value $2,000, exclusive of the m ortgage thereon, consisting of a
dwelling in which the p arty resides and appurtenances and 160 acres
of land on which same m ay be situated, or, a t the option of the party,
two contiguous lots in any incorporated city or village. Such exem pt
property shall be free from all Judgm ent liens and from sale on execu­
tion, except th a t the hom estead m ay be sold on foreclosure of me­
chanics’ liens, and of m ortgages executed by both husband and wife.
If p arty has no hom estead as above stated, he shall have exem pt the
sum of $500 In personal property in addition to the articles enum erated
by sta tu te. Mechanics, miners, or other persons, w hether heads of
families or not, have their tools and instrum ents exem pt, and a pro­
fessional m an’s library and implem ents are likewise exem pt. All
pension money, and property purchased and Im proved therew ith.not
exceeding $2,000 in value, is exem pt. Exem ption law does not apply
to claims for clerks, laborers or mechanic’s wages, nor can an attorney
plead exem ption in a suit for money or o ther valuable consideration
received by him. Only 90 per cent of wages are exem pt as against
a debt for necessaries of life.
F o re ig n C o rp o ra tio n s (see Corporations, Aliens) m ay become
domestic by filing with the secretary of sta te a true copy of charter or
articles of association, together w ith a certified copy of resolution
adopted by the board of directors accenting th e provisions of th e
act of the legislature of Nebraska, C hapter 42, Laws of 1889; m ust
m ake w ritten report to Secretary of S tate annually in July in form
prescribed by secretary of state’ and pay fee sam e as occupation tax
for domestic corporations; m ust on or before Septem ber 15th, of
each year, file a statem ent with attorney-general of State, sworn to,
showing capital stock, its m arket value, how paid, nam es of officers,
directors and agents, am ount paid in dividends and rate of percentage
thereof, all stock held in other corporations and value of such stock,
am ount of its own stock held by other corporations and value thereof,
and am ount of tru st stock held by other corporations. Does not
apply to insurance companies or common carriers. M ust appoint
agent and file nam e with secretary of sta te and w ith register of deeds
in county of principal place of business. Service m ay be had on
such agent or on sta te auditor. Secretary of sta te charges, fee of
$50.00 for keeping record of agent. P enalty $1,000 fine. Agent
or representative doing business here for corporation th a t has no
resident agent, subject to $25 fine. Does n ot apply to insurance
companies and railroads. Any corporation whose products are sold
in N ebraska m ust have a resident agent on whom service in legal
action can be had. Sale by jobbers o f goods of foreign corporations
not so represented is prohibited.
F r a u d . (See S tatu te of Frauds, L im itations, Consignment«.)
Conveyances m ade for the purpose of defrauding creditors are void
and in ten t is deemed a question of fact, n o t of law;
G a r n is h m e n t. (See A ttachm ent.) W rit m ay be issued before
judgm ent in attach m en t proceedings. A fter judgm eht and a fter
execution returned unsatisfied, w rit will issue by filing affidavit tor
same. No bond required a fter judgm ent.
H o lid ay s are Jan u ary 1st, F ebruary 12th, F ebruary 22d, April 22d,
M ay 30th, July 4th, first M onday in September, October 12th,

BANKING AND COMMERCIAL LAW S—NEVADA

1610

Thanksgiving, and December 25th. No court can be open,, nor can
any judicial business be transacted on a holiday or Sunday,, except,
first, t o give instructions to a ju ry then deliberating on their verdict;
second, to receive a verdict or discharge a ju ry ; third, to act as mag­
istrate in a criminal proceeding; fourth to grant or refuse a tem porary
injunction or restraining order. If any such fall on Sunday, th e next
day shall be a Holiday.
H o m e s te a d . (See Exem ptions.)
H u s b a n d a n d W ife. (See Decedents, Divorce, Evidence, Exem p­
tions, Married Women, Marriage.)
I n fa n c y . Males under tw enty-one and females under eighteen
are infants. County court appoints guardians, b u t if Infant over
fourteen yearn, m ay nom inate his own. Infants’ real estate m ay be
sold or m ortgaged to obtain funds for m aintenance by perm ission of
district court.
. In s o lv e n ts . (See Assignments.)
I n t e r e s t . Legal rate is 7 per cen t'a n d contract rate 10 per cent.v
Judgm ents draw same rate as specified in the instrum ent on which
ju d g m en t obtained, otherwise 7 per cent. 1A contract is not avoided
by usury, b u t in action thereon all paym ents are deducted from the
principal and plaintiff recovers only th e balance, w ithout Interest and
pays all costs.
J u d g m e n ts . (See Actions, Appeals, Exem ptions, Executions,
Interest.) Those recovered In district court are liens upon real estate
of debtdr from first day of term a t which rendered, except those by
confession and those rendered a t the same term a t which action com­
menced are liens only from date of rendition. Judgm ents of county
and justice courts become liens from date of filing transcript in the
office of the clerk of the district court. Judgm ents m ay be m ade a
lien upon lands in other counties by filing transcripts in th e office of
th e clerk of th e district court in such counties. A judgm ent becomes
dorm ant in five years apd lien upon real estate is lost if execution not
issued within th a t time. After dorm ancy m ay be revived by certain
proceedings. D orm ant judgm ents cannot be revived unless action to
revive be commenced within ten years. In judgm ents by confession
cause of action m ust be stated in the judgm ent or in a w riting filed as a
pleading, oedciency judgm ents m ay be recovered in m ortgage fore­
closure cases, if the deficiency be such th a t it m ay be recovered a t law.
J u r is d ic tio n . (See Actions, Judgm ents.)
J u s tic e s o f t h e P e a c e . (See Courts, Judgm ents, Actions;)
L ic en se. (See Insurance Agents.) Commercial travelers are not
required to take o ut a license. There is a provision in the code
requiring peddlers and commission m erchants to take out a license.
Does n o t apply to persons selling their own works or productions o r
books, charts, m aps or other educational m atter, or fresh m eats,
fruit, farm products, trees or plants exclusively.
L ie n s. (See Judgm ents.) M aterial m en and laborers and me­
chanics are entitled to liens upon th e building or im provem ents fos
m aterial furnished and labor performed, by filing in the office of the
register of deeds an itemized statem ent of account duly verified by
affidavit of p arty, showing am ount due, nature of th e contract
description of property, nam es of the parties; and if the claim arise
out of a w ritten contract, or if a note or other w ritten evidence has
been taken in paym ent of the account, copies m ust be attached. An
original contractor m ust file such statem ent w ithin four m onths from
the tim e of furnishing such m aterial or perform ing the labor; a sub­
contractor w ithin sixty days. Lien dates back to com m encement of
work or labor and is valid for two years from d ate of filing. All
mechanics’ liens on the same premises are of equal priority and pro­
rate In the proceeds of sale of property. If sold under foreclosure thereof.
L im ita tio n s . Actions brought to recover real property or fore­
close m ortgages thereon m ust be commenced w ithin ten years after
cause of action accrues. Actions for forcible en try and detention,
libel, slander, assault and battery, malicious prosecution, false im­
prisonm ent, and those to enforce penalties o r forfeitures, m ust be com­
menced within one year. Actions for trespass to real property, taking,
detaining or injuring personal property, upon contracts n ot in writing
upon a liability created by sta tu te 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 n ot specifically limited by
statu te, m ust be commenced w ithin four years. Actions upon a
specialty, agreem ent, contract in writing, promissory notes, etc., and
foreign judgm ents, m ust be commenced within five years. Actions
upon official bonds of executors, adm inistrators, guardians, sheriffs,
or other officers, and upon sta tu to ry bonds, m ust be commenced with­
in ten years. I f parties under disability, cause of action does not
commence to run until such disability removed. Actions for damages
for causing d eath m ust be brought within two years.
L im ite d P a r tn e r s h ip . (See Partnerships.) Articles thereof
m ust be in writing, acknowledged by the parties and recorded in the
office of th e county clerk of every county where partnership shall have
a place of business. The special p artn er is n ot liable beyond the
am ount Contributed to the partnership funds, b u t has nothing to do
with th e m anagem ent or conduct of th e ousiness; otherwise Is liable
as general partner. Special p artn er’s nam e shall n o t appear in the
firm.
M a rrie d W o m e n (see Decedents, Evidence, Exem ptions, Mar­
riage) m ay contract, bargain, sell, and convey their separate property
in th e sam e m anner as m ay a m arried m an, and retain ownership
an d control of their own property notw ithstanding the marriage.
May sue and be sued,, carry on trade or business as if unm arried, and
earnings of an y m arried woman are her sole and separate property.
M o rtg a g e s . (See Actions. Acknowledgments, Courts, Dower,
Lim itations, C hattel Mortgages.) Mortgagor, regardless of stipulation
contained in m ortgage (and in the absence of special agreem ent, which
m ust be In a separate w riting), retains legal title and right of possession
of property. In case of assignm ent of m ortgage it Is safer to record
the assignm ent. If note secured by m ortgage is negotiable assign­
m ent need n o t be recorded. Release m ay be by separate Instrum ent
or upon th e m ortgage records in register of deed’s office, and If m ortga­
gee, after m ortgage fully paid, neglects or refuses for seven days to
discharge such mortgage, he is liable to a penalty of 5 10 0 and all actual
dam ages suffered by the other party. Mortgages can only be fore­
closed by suit, and after foreclosure suit commenced no action can be
m aintained a t law upon th e debt, unless authorized by th e court and
if action be first commenced a t law, cannot foreclose the m ortgage
until judgm ent obtained and execution returned thereon unsatisfied.
A fter decree of foreclosure of m ortgage obtained, defendant m ay stay
fu rth er proceedings, for nine m onths by filing "a request for stay, in
th e offloe of the clerk of th e court w ithin tw enty days after such
decree entered. Such sta y is equivalent to redem ption period allowed
in other States, and owner m ay redeem a t an y tim e before confirma­
tion of sale. Deeds are held to be m ortgages when intended only as
security, a n d m u st be foreclosed sam e as. mortgages. M ortgage m ust
sta te actual consideration where it exceeds $100. ;
N e g o tia b le I n s t r u m e n t s . (See Notes.)
N o tes a n d B ills. All notes, bonds, or bills of exchange, except
bank checks and instrum ents payable on dem and, are payable a t
tim es fixed therein, w ithout grace; are n o t negotiable unless drawn
payable to a person, bearer, order, or assigns. If date of m atu rity fall
on S aturday or Sunday, or a holiday, are payable on the n ex t business
dav. P a rty purchasing negotiable paper before m atu rity , w ithout


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f);

notice, take same free irom equities between original parties.
negotiable instrument law is In force.

Uniiorm

P a r tn e r s h ip (see Lim ited Partnerships) m ust adopt and sign
articles of partnership agreem ent showing firm name, nature and place
of business, nam e 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 requirem ent entails penalty’
b u t 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 a t the trial, the nam es of the persons com­
posing the firm, b u t in such event plaintiff m ust give security for costs.
P le a d in g s . (See Actions.)
P o w e r of A tto r n e y to convey real estate m ust be executed and
acknowledged same as deeds and m ay be recorded.
P ra c tic e . Regulated by code which is patterned after Ohio.
P ro b a te . (See Courts, Decedents.) County court has exclusive
original jurisdiction of all probate m atters.
P ro m is s o ry N o tes. (See Notes.)
P ro o f of C la im s. (See Deeedents, Accounts.) Same rules of
evidence govern as in civil actions.
P r o te s t. (See Notes.)
R e p le v in . P a rty m ay recover possession of personal property
within four years after cause of action accrued by filing petition and
affidavit of himself, agent or attorney, giving a description of the
property, stating the facts connected with the ownership, and th at he
is entitled to the im m ediate possession, etc., of the property. I t is
then seized by the officer and duly appraised, and within twenty-four
hours thereafter plaintiff m ust give bond in double the appraised value,
conditioned th a t he will d u ly prosecute th e action and pay all costs
and dam ages th a t m ay be awarded against him, and retu rn th e proper­
ty or its reasonable value to the defendant in case judgm ent for a
return be rendered.
R e v e n u e . (See Taxes.)
* S ales. (See Conditional Sales.) M erchant cannot sell in bulk
without notice to creditors.
S e c u rity fo r C o sts. N6n-resident plaintiff m ust give security for
costs or furnish cash bond.
S t a t u t e o f L im ita tio n s . (See Lim itations.)
S ta y . (See Executions, Judgm ents, Mortgages.)
S u its . (See Actions.)
S u m m o n s . (See Actions, Attachm ents, Divorce, Service.)
T ax es. Taxes on real property are a lien thereon from October 1st
of year of levy. Taxes on personal property are a lien thereon from
Novem ber 1st of year of levy. Tax deed m ay 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 m ay sell the property by action in court.
T o rre n s S y ste m . Provision is m ade for registration of land
title, under Torrens System, upon application of owner.
T r u s t C o m p a n ie s are authorized to act as executors, adminis­
trato rs, receiver, agents, etc,
T r u s t D eeds are seldom used and are treated as mortgages.
W ilis. (See Decedents.) Every person of full age and sound
mind m ay dispose of his property by will, which m ust be signed by
the testato r, 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 com petent witnesses. N uncupative wills
are valid when proved by the oath of three witnesses present a t the
making thereof, and when th e testa to r a t the tim e asked th e persons
to bear witness th a t such was his will, or words of like effect. No will
shall be effectual to pass title to any property unless probated. Foreign
wills duly proved and allowed in any state or foreign country m ay be
probated in this S tate in any county wherein the testa to r shall have
real or personal property, on which the will shall operate
W itn e sse s. (See Evidence.)
W o rk in g m e n ’s C o m p e n s a tio n . (See Employers Liability.)

SYNOPSIS OF

T H E L A W S OF N E V A D A
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by A yres & G a r d in e r , A ttorneys and Coun­
selors a t Law, Reno. (See Card in A ttorneys’ List.)
A c k n o w le d g m e n ts. E very m ortgage, deed, or other conveyance,
conveying or affecting real estate, shall be acknowledged or proved
and certified as follows: If w ithin this S tate it m ay be a judge or
clerk of a court having a seal, notary public, county recorder, or
justice of the peace. I f w ithout this State, and within th e United
States, by a judge or clerk of a State, U nited States, or territo ry court
having a seal, a commissioner of deeds for this S tate, or some notary

BANKING AND COMMERCIAL LAWS—NEVADA
public or justice of th e peace in his county. A justice’s certificate
which is attach ed to a deed to be recorded out of his county, m ust
have a certificate of a clerk or a court of record of his county as to
his signature and official character. If outside of th e U nited States,
the aexnowledgment can be had oefore a judge or clerk of a court
having a seal, or a n otary public or a minister, commissioner, or counsel
of th e U nited States, th e certificate of the officer taking th e acknowl­
edgment shall be annexed to or endorsed on the instrum ent, and shall
be under hand and seal except m cases of justices of th e peace which
shall be under th é hand of such justice of the peace and certified as
above stated. T he p a rty executing and acknowledging the instru­
ment m ust be known or proved by oath of witness to be the proper
party, and th e certificate m ust sta te such fact.
Conveyance by a m arried woman is acknowledged in th e sam e way
and form as th a t of a m an and has the same effect as if she were
unmarried. T he form of-acknowledgment by an individual shall be
substantially as follows:
State of Nevada, C ounty o f....................... On th is................... day
of.................... A. D .................... ..........................personally appeared
before me. a notary public (or judge or other officer as th e case m ay
be) in and for the C ounty o f....................... . S tate o f.........................
.......................known (or proved) to me to be the person described in
and who executed th e foregoing instrum ent, who acknowledged to
me th a t he (or she) executed th e same freely and voluntarily and fojr
the uses and purposes therein mentioned.
In witness whereof I have hereunto set my hand and affixed my
official seal th e day and year in this certificate first above w ritten.
........................ N o tary Public in and for the County o f......................... .
State o f....................... (or other official nam e of the officer who takes
the acknowledgment).
Form of acknowledgment of a corporation.
On th is....................... day
State of N evada, C ounty o f...................
of................ A. D .............. . personally appeared before m e a notary
public (or other officer or judge as the case m ay be) in and for the
County o f......................... S tate o f........................... (name of p arty who
executes an d acknowledges instrum ent) known (or prdved) to m e to
be the president (vice-president or secretary) of th e corporation th a t
executed th e foregoing instrum ent and upon oath did depose th at he
is the officer of said corporation as above designated, th a t he is ac­
quainted with th e seal or said corporation and th a t the seal affixed to
said instrum ent is th e corporate seal of said corporation; th a t the signa­
tures to said instrum ent were m ade by officers of said corporation
as designated after said signatures; and th a t the said corporation
executed th e said instrum ent freely and voluntarily and for th e uses
and purposes therein m entioned.
In witness whereof I have hereunto set m y hand and affixed m y
official seal th e day and year in this certificate first above w ritten.
........................... . N otary Public in and for the C ounty o f.........................
State o f....................... (or other official nam e of the officer who takes
the acknowledgment).
Form b y attorney-in-fact:
State of N evada, C ounty o f....................... On th is.............sg day
of.....................A. D ................. personally appeared before me a N otary
Public (or judge or other officer as the case m ay be) in and for the
County o f....................... S tate of N evada (name of person who exe­
cutes and acknowledges instrum ent) known (or proved) to me to be
the person whose nam e Is subscribed to th e within instrum ent as the
attorney in fact o f................... and acknowledged to me th at he sub­
scribed th e nam e of sa id ................... 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 m y hand arid affixed my
official seal the day and year in this certificate first above written.
.......................N otary Public in and for the County o f......................
State o f................... (or other official nam e of the officer who takes the
acknowledgment).
. ,
By the laws of th e S tate of N evada, any acknowledgment hereto­
fore or hereafter taken or certificate thereof m ade w ithout this State
either in accordance w ith th e laws of this S tate or in accordance with
the laws of th e 3tate. T erritory, or C ountry where the acknowledg­
ment is taken, shall be sufficient in this S tate. Nevertheless n N otary
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 th e title to real estate or personal property,
or th e proof of execution thereof as provided in the laws of Nevada,
signed by th e officer taking the same, and under the seal of such
office, shall entitle such conveyance or instrum ent with the certificate
or certificates of acknowledgment to be' recorded in th e office of the
recorder of any county in this S tate provided th a t any S tate of U nited
States contract or p aten t for land m ay be recorded without any such
acknowledgment or proof.
A ctio n s. (See Suits, Lim itations.)
A ffid av its. Affidavits taken out of this S tate but within the
United S tates to be used before any court or officer in this S tate m ust
be tak en before a no tary public, a commissioner appointed by the
governor of this State, or a judge of a court having a seal attested by
the clerk. I f in a foreign cçu n try such affidavits shall be taken before
an am bassador, m inister, consul, or vice-consul of the United States,
or judge of a court in such foreign country having a seal. The
genuineness of th e signature of th e judge, tb e existence of the court
and th e fact th a t such judge is a m em ber thereof shall be certified by
the clerk of th e court, under th e seal thereof.
A lien s. Persons and corporations, except subjects of the Chinese
Empire, have the sam e rights as resident citizens and domestic cor­
porations, except th a t foreign corporations m ust comply with corpora­
tion laws of this S tate.
A p p eals. Actions tried in Justice court m ay be appealed to dis­
trict courts, where trial is had de novo and can proceed no farther.
Actions in which th e district courts have original jurisdiction m ay be
appealed to th e suprem e court.
A r b itra tio n . Provision Is m ade by law for the settlem ent of dis­
putes by arb itratio n ; th e aw ard of the arbitrators to be filed with the
clerk of th e d istrict court and docketed the same as a judgm ent in
civil action.
A rre s t. A fraudulent or absconding debtor, or one who conceals
his property, or removes or disposes of It with Intent to defraud his
creditors, m ay be arrested.on affidavit of the fact made; surety in not
less th an $500 being given by the plaintiff. (See Attachm ent.)
A s sig n m e n ts a n d In so lv e n c y . Except as affected by the
national bank ru p tcy act of 1898, th e sta tu te respecting assignment
is in force: Insolvent debtors m ay be discharged from their debts
by complying w ith provisions of insolvent laws. An assignm ent of
insolvent debtor, not in compliance w ith insolvent law,s, is void as
to creditors.
•
A tta c h m e n t. W rit of attachm ent m ay be issued w ith summons,
at an y tim e afterw ard on affidavit and bond. Iri an action upon
judgm ent or upon a contract for th e direct paym ent of money , made,
by the term s thereof payable, In this State, which is not secured
t m ortgage, lien, or pledge upon real or personal property, situated
being in th e State; if so secured, when such security has w uhout
4 of plaintiff or person to whom given become valueless or insufficient
value to secure sum due in which case attachihent m ay issue tor


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1611

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 th e S tate for th e recovery of th e value
of property, where such property has been converted by a defendant
w ithout th e consent of the owner. W here th e defendant has ab­
sconded, or is about to abscond, w ith in ten t to defraud hiS creditors.
W here th e defendant conceals himself so th a t service of sum m ons can
n ot be m ade upon him. W here a defendant is about to rem ove his
property, or any p a rt thereof, beyond th e jurisdiction of th e court
w ith th e intent to defraud his creditors. W here a defendant is about
to convert his property, or any p a rt7thereof, into m oney w ith intent
to place it beyond th e reach of his creditors. W here a defendant
has assigned, removed, disposed of, or is about to dispose of his prop­
erty, or any p a rt thereof, w ith th e in ten t to defraud his creditors.
Where a defendant has fraudulently or crim inally contracted a debt
or incurred th e obligation for which suit has been commenced. G ar­
nishee process m ay be had in aid of attachm ent. T he clerk of the
court shall issue, th e w rit of attachm ent upon receiving and filing an
affidavit by or on behalf of th e plaintiff, showing th e n atu re of th e
plaintiff’s claim, th a t same is just, th e am ount which th e affiant
believes th e plaintiff is entitled to recover, and th e existence of any *
one of the grounds for an attachm ent above enum erated, w ith an
undertaking not less th an $500, and an am ount equal to one-fourth
of 'demand, b u t not exceeding $5,000. In Justice’s C ourts (See
Courts) bond m ust be in am ount sued for b u t n o t under $50.
B a n k s . S tate—are regulated and controlled by a comprehensive
general banking law. Amended (1915) to perm it S tate banks to join
Federal Reserve Bank System.
C o n v e y an ces. The husband has the entire m anagem ent and control
of the com m unity property, with the like absolute power of disposition
thereof, except as hereinafter provided, as of his own separate estate;
provided, th a t no deed of conveyance, or mortgage, of a hom estead as
now defined by law, regardless of whether a declaration thereof has
been filed or not, shall be valid for any purpose whatever, unless b o th '
the husband and wife execute and acknowledge the sam e as now pro­
vided by law for the conveyance of real estate. ,
C o rp o ra tio n s. The laws of this S tate are substantially th e same
as those of New Jersey. Foreign corporations to transact business
and institute actions in this S tate m ust file certified copy of articles
of incorporation w ith th e secretary of sta te and county clerk; also
designation of resident agent. There is no license tax. Stockholders
and directors’ m eetings of N evada Corporations m ay be held in or
out of State. There is no “ Blue S ky” law. T he laws of this S tate
are generally regarded as m ost desirable in every w ay for th e form ation
of corporations to do business in other states.
C u r te s y is n ot recognized in this S tate.
C o u rts. Jurisdiction. D istrict courts have original, statu to ry ,
and common law jurisdiction in all cases a t law and in equity, also in
law, when the title or possession of land or mining claims m ay be
Involved, or legality of any tax, etc., also in actions to foreclose
mechanics’ lien; and in all cases in which the dem and, exclusive of
Interest, or the value of th e property in controversy exceeds $300,
and in probate In all cases relating to estates of deceased persons, and
persons and estates of minors, insane persons. Ju s tic e s jurisdiction.
$300, exclusive of interest, and atto rn ey ’s fees.
D eeds. A deed of quit-claim passes all th e title th a t th e grantor
has a t the date of the conveyance. A deed of grant, bargain an d sale
carries w ith it th e sta tu to ry covenant th a t a t th e tim e th a t the
grantor executed the deed, he was th e owner of th e property conveyed
and had not conveyed it to any other person and had placed no
encumbrance upon it. This form of deed conveys any title th a t the
grantor shall afterw ards acquire. A w arranty deed contains a cov- .
enant: “ The grantor herein will forever w arrant and defend the
title to the premises herein described against any a n d all persons
whomsoever claiming th e sam e.”
•
The law governing and form of acknowledgments is titled under
Acknowledgments. ”
D e p o sitio n s. Depositions m ay be taken within this S tate before
any judge, clerk, justice of the peace or a notary public, upon notice
to the opposite party of the tim e and place of taking. Depositions
may be .taken out of the S tate upon commission under the seal of the
court upon proper application, or by stipulation of the attorneys.
D ivorce. Divorce from th e bonds of m atrim ony m ay be obtained
by com plaint under oath to th e D istrict C ourt, of th e bounty in
which th e cause therefor shall have accrued, or in which th e defendant
shall reside or be found, or in which th e plaintiff shall reside, if the
latter be either th e county in which th e parties last cohabited, or in
which th e plaintiff shall have resided six m onths before suit be brought,
for the following causes:
F irst: Im potency a t th e tim e of m arriage continuing to th e tim e
of the divorce.
Second: A dultery, since th e m arriage, rem aining unforgiven.
T h ird : Wilful desertion, a t any tim e, of either p a rty by th e other
for th e period of one year.
Fourth: Conviction of felony or infam ous crime.
F ifth: H abitual gross drunkenness, contracted since m arriage of
either party, which shall incapacitate such p a rty from contributing
his .or her share to th e support of th e fam ily.
Sixth: E xtrem e cruelty in either party.
Seventh: Neglect of th e husband, for th e period of one year, to
provide th e common necessaries of life, when such neglect is n ot th e
result of poverty on th e p a rt of th e husband which he could n o t
avoid by ordinary industry.
Residence is defined as follows:
“The legal residence of a person w ith reference to his or her right
of suffrage, eligibility to office, right of naturalization, right to m ain­
tain or defend any suit a t law or in equity, or any other right dependent
on residence, is th a t place where he or she shall have been actually,
physically and corporally present w ithin th e sta te of county, as the
case m ay be, during all of the period for which residence is claimed
by him or her; provided, however, should any person absent himself
from the jurisdiction of his residence with the intention in good faith
to return without delay and continue his residence, the tim e of such
absence shall not be considered in determ ining the fact of such
residence.”
D ow er is not recognized in this State.
E x e c u tio n s . Stay of Execution; Judgm ents. The laws of N evada
on these points are similar to those of California [see ante], except
th a t when redem ption is made of real estate^ 18 per cent m ust be paid
in addition to purchase money.
E x e m p tio n . Homestead, $5.000; the earriirigs of the debtor, if
earned th irty days preceeding, if it is m ade to appear necessary for
the support of the debtor, exempt where debt is for necessaries, or his
family; personal and mining property, tools, implem ents, etc.,
exem pt same' as in California ¡which seel.
G a r n is h m e n t. ' (See Attachm ent.)
, H olidays.. Sunday,.New' Y ear’s D ay, tirico lh ’s B frthday,.W ash­
ington’s B irthday, Memorial D ay, .F ourth of July) Labor D ay,'O cto­
ber 12th (Colum bus'Day) and 31st (N evada admission day). T hanks­
giving, December 25th, and all days on which a prim ary or a general
election is held, are non-judifciai. days and are. term ed legal holidays

BANKING AND COMMERCIAL LAW S—NEW HAMPSHIRE

1612

an d generally observed as such. Also Arbor day fixed by proclam a­
tion of governor one m onth before fixing such date, and Is only a
holiday fo r public schools. Bills Of exchange, checks, promissory
notes, and other negotiable instrum ents falling due upon any holiday
are payable th e day previous.
H u s b a n d a n d W ife. (See Married Women.)
I n t e r e s t . The legal rate is 7 per cent per annum , b u t parties m ay
contract in writing for th e paym ent of any other ra te not in excess of
12 per cent per annum . After a judgm ent on such a contract, only
th e original claim shall.draw interest, and th e rate of interest m ust
be m entioned in th e judgm ent. U nadjusted accounts do n o t bear
interest.
L im ita tio n s of S u its . Open or store account and contract n ot
in writing, four yèars; upon contract or instrum ent of writing, six
years ; actions concerning real property, except mining claims, fiVe
years; mihing claims two years. Judgm ent, or decree of th e district
court—six years; of th e justices court—"five years. Revivor: Ac­
knowledgm ent or new promise in w riting or paym ent on account.
Judgm ents .become a lien upon real property for two years.
, M a rrie d W o m e n . All property of the wife, owned by her before
m arriage, and th a t acquired afterw ard by gift, bequest, devise or
descent, her separate property. In Nevada, under th e sta tu te of
1873, th e wife has absolute power over her separate property, and
m ay dispose of the same w ithout th e consent of her husband. All
other p roperty acquired during coverture by husband or wife, common
property,, b u t controlled by husband. Upon a dissolution of the com­
m unity by the death of th e husband, th e hom estead set a p a rt by the
husband and wife, or either of them , goes to the wife and minor
children, and if there are no m inor children, to the widow. The hus­
band, m ay dispose of one-half of th e common property by will, exclu­
sive of th e hom estead. The other half of the com m unity property
goes to th e wife, subject to adm inistration and debts of the husband.
Separate property of wife should be inventoried and recorded. Fail­
ure so to do raises prim a facie presum ption p roperty is not her separate
estate.
M o rtg a g e s m ust be recorded. No m ortgage of personal property
Is valid unless possession is delivered to and retained by th e m ort­
gagee. or unless the m ortgage IS verified by the oath of the m ortgagor
an d mortgagee ana is recorded in th e county where th e m ortgagor
and m ortgagee reside.
N o tes a n d B ills of E x c h a n g e . The uniform negotiable instru­
m ent law has been adopted in this S tate.
P ro b a te . All claims against estates of deceased persons m ust be
filed w ithin three m onths after th e first publication of the notice of
appoin tm en t of th e executor or adm inistrator. E states not exceeding
$2,000 in value, in th e discretion of th e judge, m ay be sum m arily
adm inistered, and in cases of sum m ary adm inistration all regular pro­
ceedings and notices are dispensed w ith, except the notice of the
appointm ent of th e executor or adm lnlstratof. Creditors of such an
estate m ust file their claims within forty days.
All estates of husband or father of $500 or less are distributed to
widow or children under age w ithout probate, not subject to any debts.
S ales. T hè uniform sales a ct is in force in N evada. T here is
also a “ bulk sales” act.
S u i t s . . Practice is under a code, and there is b u t one form of action,
known as a civil action, and commenced by filing com plaint w ith the
clerk of th e court and the issuance of a summons. Service on non­
residents m ay be had by publication. Personal service of a copy of
summons and com plaint is equivalent to th e publication of th e sum ­
m ons.
T ax es are a lien upon the property assessed and th e real estate of
the owner thereof from the first Monday in March in each year.
Suits for delinquent ta x e s m ay be commenced by direction of the
county commissioners, and there is redem ption of real estate sold a t
ta x sale in th e same m anner as realty sold under ordinary execution.
W ills. T he Uniform Wills Act is in force in N evada.

SYNOPSIS OF

T H E L A W S OF N E W H A M PSH IR E
RELATING TO

BANKING AND COMMERCIAL USAGES
Revised by J ohn R. S p r in g , A ttorney a t Law, Nashua.
(See Card in A ttorneys’ List.)'
A c k n o w le d g m e n ts of deeds or other conveyances of real estate
m ust he m ade before a justice, notary public dr commissioner, or in
foreign countries before.a m inister or consul of th e United States. The
signature of th e grantor m ust be attested by two witnesses.
A c tio n s . The common law prevails as to procedure. Non-resi­
den ts can In stitute suit, a resident becoming responsible for costs
by indorsing th e w rit. T ransitory action m ay be brought in the
co u n ty where one of the parties resides. If both are non-residents
th e action m ay be brought in any county.


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A d m in is ta tio n of E s ta te s . A dm inistration shall be granted in
the following order of precedence: To the executor nam ed; to the
widow, or any of th e next of kin, or to such person as they shall
nom inate; to one of the devisees or to a creditor; to such other person
as the judge shall think fit. A non-resident shall not be appointed
unless urgent necessity demands. An am ple bond with resident
sureties shall be filed. No suit shall be brought against the admin­
istrator within the first year of his adm inistration. Claims shall be
presented within one year after his appointm ent, and no action can
be brought after two years. Actions are not m aintainable against
an adm inlstratoi of an estate, after a decree ol insolvency. Estates
m ay be adm inistered in th e insolvent course, and then a commissioner
shall be appointed to exam ine and allow claims. Preferred claims
to be settled in full are: Expenses of adm inistration, widow’s allow­
ance, charges of burial, and taxes. Claims for the last sickness shall
be paid in full If there rem ains anything after paying the preferred
claims. (See A rbitration.)
A ffid av its. . Affidavits are n ot admissible in evidence, being ex
parte, b u t motions are heard upon affidavits presented to the court
May be m ade before an officer authorized to adm inister oaths. (See
A ttachm ents.)
A lie n s. They are not entitled to vote. An alien m ay purchase,
hold and convey real estate, and it will descend in the same manner
as if he were a native born citizen. W hen the wife of an alien has
resided in the S tate six m onths, separate from her husband, she
acquires all the rights of the wife of a native bom citizen.
A rre s t. 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 A ttachm ents.)
A s s ig n m e n ts a n d I n s o lv e n c y . Assignments for benefit of credi­
tors to be fllecj in the probate court of the county in which debtor
■resides. The provisions of the law upon this subject are suspended
by the U nited S tates bankrupt law.
A tta c h m e n ts of all real and personal property m ay be made on
the original writ, and constitute a valid lien on the property for thirty
days after judgm ent, within which period the execution m ust be levied
to preserve and perfect the lien. All attachm ents 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 garnishm ent in other states) may be
used to reach money or credits of the defendant in the hands of
another. Save as against claims for necessaries the wages of the
defendant up to $20 are exem pt from such process. (Bill now pending
in Legislature to modify trustee exemptions.) In actions on con­
tracts where debt exceeds $13.33, defendant m ay be arrested on
affidavit of plaintiff th a t he (defendant) has concealed his property
or is about to leave th e S tate to avoid paym ent of his debts. (See
Garnishment.)
B a n k . Banks can be chartered only by a special act of the legis­
lature. Building and loan associations m ay be organized as volun­
ta ry associations. Once every year a thorough exam ination shall be
m ade into the condition and m anagem ent of every bank, building
and loan association, and tru st com pany in the S tate by one of the
three bank commissioners. (Bill now pending reducing num ber of
bank commissioners to one.) The commissioners shall on or before
the 1st day of October, annually, file their report with the secretary
of state. They shall give in their report a detailed statem en t of all
the item s of expense of each institution, w ith the nam es of the treas­
urer and clerks, the salary of each, w ith the kind and am ount of stocks
and bonds held b y each, with th e par value thereof, and the cost and
the m arket value a t the date of exam ination. The cashiers of every
sta te bank, and every association or partnership formed for the pur­
pose of transacting such business as is usually transacted by banks,
shall, on the first Monday of March, June, Septem ber, and December
in each year, m ake a statem ent 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; am ount of debts due from directors; am ount of Bpecle
in the vaults; am ount of bills of- other banks on hand; am ount of
deposits in th e bank; am ount on deposit in other banks for the
redem ption of its bills; and the am ount of bills of the bank then in
circulation; which statem ent shall be signed and sworn to by the
cashier, and returned to the secretary of state. The trustees of sav­
ings banks shall m ake a thorough exam ination of the affairs of their
respective banks once in every six m onths, and a repo rt of such
exam ination, signed by a com m ittee of th e trustees, shall be returned
to th e bank commissioners, and a copy of the report published in a
new spaper published in the place where such bank is established;
or, if there be no new spaper in such place, th en in a newspaper at
the nearest place.
B ills of E x c h a n g e . (See Notes, and Bills of Exchange.)
C h a tte l M o rtg a g e s . (See Mortgages.)
C o lla te ra l. There have been no sta tu to ry enactm ents on this
subject. Pledgee of stock is n ot liable as a stockholder, b u t the gen­
eral owner Is.
C o n v e y a n c e s. Every deed, and lease for more th an seven years,
shall be signed, sealed, attested by two or more witnesses, acknowl­
edged before a justice of the peace, notary public, or commissioner,
and recorded in the registry of the county wherein the real estate is
situated. Every power of atto rn ey to convey real estate m ust be
executed w ith the same form alities. Conditional conveyances must
sta te the sum to be secured, or the thing to be performed. Admin­
istrators, 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- th a t be has observed all th e require­
m ents of law.
C o rp o ra tio n s . Corporations can be chartered by the legislature
V oluntary corporations can be formed for any purpose except bank­
ing, life Insurance, railroading or trading-stam p business. Five per­
sons m ay associate themselves together under w ritten articles of
agreem ent, which articles shall set forth the corporate name, its
object, place of business, and am ount of capital, which m ay be any­
where from $1,000 to $5,000,000, with the par value of the shares at
not less th a n $25 or more th an $500. This agreem ent shall be recorded
in the office of the secretary of state, and in the office of the clerk of the
town where the business Is to be carried on. Every corporation which
shall n ot carry on its business in the State, obtaining a charter here,
shall pay a charter fee as Jollows: $10 on a capital of less th an $25,000;
$25 on a capital between $25,000 and $100,000; $50 on a capital
between $100,000 and $500,000; $100 on a capital between $500,000
and $1,000,000;-and $200 where it exceeds $1,000,000. The said
charter fee shall be paid when the articles are recorded. The clerk
of every corporation shall be and continue a resident of th e State.
And a t least one of th e directors shall be an actual resident of the
S tate, if th e corporation as any stockholders resident in th e State.
No corporation shall selljor dispose of any of its stock a t a price less
th an the par thereof. A note is not paym ent therefor. Cumulative
voting is not perm itted. Stockholders in all corporations, except
banks and railroads; shall be liable for all th e debts of the company
until th e capital is fully bald, and a certificate under the oath of the

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treasurer and a m ajority 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 th e treasurer and a m ajority of the directors, of
its assets, liabilities, and any assessments, which report, shall be
recorded In th e office of the secretary of state. A failure to m ake such
return renders th e officers personally liable for all the company debts.
C o u rts. The superior court has original Jurisdiction over all causes
The suprem e court decides questions of law upon bills of exception,
transferred from th e superior court, and it holds Its sessions every
month, except Ju ly and August. P robate courts have Jurisdiction
over estates of deceased persons, Insolvent estates, minors, insane
nersons. adoptions, change of names, trustees, and partition of real
estate. D istrict police courts and justices of the peace have concurrent
jurisdiction w ith th e superior court up to $100 when the title to real
estate is n o t involved, and can render judgm ent upon confession up to
*200. The term s of th e superior court shall be held In each year a t
the tim es and places following: For the county of Rockingham, at
Exeter, on the th ird Tuesday of Jan u ary and the third Tuesday of
Anril; and a t Portsm outh on the th ird Tuesday of October. For the
county of Strafford, a t Dover, on the second Tuesday of February,
and the th ird Tuesday of Septem ber. For the county of Belknap, at
Laconia, on th e first T uesday of March and the first T uesday of
November. For th e county of Carroll, a t Ossipee. on the third Tues­
day of May, and th e second Tuesday of November. For the county
of Merrimack, a t Concord, on the first Tuesday of April and the first
Tuesday of October. F or the oounty of Hillsborough, a t Manchester,
on the first T uesday of Jan uary, and the first Tuesday of May, and
a t N ashua th e th ird Tuesday of September. For th e county of
Cheshire, a t Keene, on the first Tuesday of AprU and the first lu e s day of October. For th e county of Sullivan, a t Newport, on to e seoond Tuesday of May and th e second Tuesday of November. For the
county of Coos