LAWS OF NEW JERSEY.

made when testator had no children and not providing for or mentioning possible issue is void if he die leaving a child or issue; if there was issue, after-born children or their descendants unprovided for inherit as in case of intestacy.

A foreign will may be admitted to probate in this State and letters testamentary issued thereon without the production of the original will upon petition to the ordinary or a surrogate and production of an exemplified copy of the record of the will and foreign probate and letters, if it appears from the record that the will was executed in accordance with the laws of this State, and if not, upon proof, taken in the manner provided by law, of the due execution of will according to the laws of this State. A copy of a foreign will may be recorded for the purpose of making title to lands in this State, upon the recording in the surrogate's office of an exemplified copy of the record of the foreign will with the certificate of probate and letters granted thereon. (Laws 1898, pp. 722, 723.)

Foreign executors or administrators may prosecute actions in this State without taking out letters here, provided they file in the court in which suit is brought or in the prerogative court an exemplified copy of the record of their appointment, and give security for costs if required, and in the same way they may come into a suit begun in the lifetime of the deceased. (Laws of 1888, ch. 318; 1896, ch. 119.)

An executor of a domestic will, residing out of this State, need not give a bond if the will appointing him so provides. (P. L. 1880, p. 96; Supp. Rev. 778.) See Claims against Estates of Deceased Persons.

LAWS OF TERRITORY OF NEW MEXICO

RELATIVE TO THE

COLLECTION OF DEBTS,

TAKING OF DEPOSITIONS, ETC.

PREPARED EXPRESSLY FOR HUBBELL'S LEGAL DIRECTORY, DECEMBER 1, 1906, BY EUGENE A. FISKE, OF SANTA FÉ.

Acknowledgments. See Deeds.

Actions.- Civil actions in district courts must be brought: 1. All transitory actions, in the county where plaintiffs or defendants or some one of them resides; or in the county where the contract sued on was made or is to be performed, or where the cause of action originated or indebtedness sued on was incurred; or in any county in which the defendants or any of them may be found, in the judicial district where the defendant resides. 2. Against defendants liable to civil action for criminal act, in the county where the offense was committed, or in which defendant may be found, or in which the plaintiff resides. 3. Suits for the recovery of personal property other than money may be brought as above provided or in the county where the property may be found. 4. When lands or any interest in lands are the object of any suit, in whole or in part, the suit must be brought in the county where the land or some portion of it is situated. 5. Suits for trespass on land may be brought as provided by paragraph 1 or 4. 6. Suits against transient persons or non-residents may be brought in any county of the Territory. See Corporations as to service on same.

Civil actions in such courts are commenced by filing a complaint, upon which summons issues directing the defendant to answer the plaintiff's complaint within twenty days after service thereof, if served in any county in the district in which he is sued; otherwise, within thirty days after service. If defendant within the time stated in the summons demands in writing a copy of the complaint, it must be served upon him within twenty days, and defendant then has twenty days after such service in which to answer. Every pleading subsequent to the complaint must be filed and served within twenty days after the service of the pleading to which it is an answer, demurrer, or reply, unless the time be extended by the court. When a pleading is verified, every subsequent pleading except a demurrer must also be verified. Clerks of court are required to collect in advance all court

costs.

Judgment may be had if the defendant fail to answer the complaint as notified in the summons and for other defaults in pleading, and any judgment or decree, except when trial by jury is necessary, may be rendered by the judge of the district court at any place where he may be in his district or when in attendance upon the supreme court. Interlocutory orders may be made by such judge wherever he may be in the Territory. In the absence from the Territory of a judge of the district in which the suit is pending, any other judge may render such judgment, order, or decree.

The district courts are at all times in session for all purposes, except jury trials; hearings, when had out of term time, to be had upon five days' notice to the opposite party, his attorney or solicitor. (See Service.)

Administration of Decedents' Estates. — See Claims against Estates of Deceased Persons.

Affidavits. Affidavits may be taken before a judge or clerk of a court of record, a justice of the peace, or a notary public. Affidavits executed out of the Territory should be certified under the seal of the custodian of the record evidence of the election or appointment and qualification of the officer taking such affidavit.

"

When any person shall be required to take an oath on any "lawful occasion," the person swearing shall with his right hand uplifted follow the words required in the oath as administered beginning, "I do solemnly swear" and closing "So help me God; " or any person required to "take or subscribe an oath, having conscientious scruples against taking the same," is permitted to affirm, with uplifted right hand in the following form, viz.: You do solemnly, sincerely, and truly declare and affirm," and close with "and this I do under the pains and penalties of perjury."

Aliens. The act of Congress of March 3, 1887 (24 U. S. Stats. 476), prohibited aliens from acquiring or holding in this Territory any real estate or interest therein, except by inheritance or in good faith in the ordinary course of justice, in the collection of debts created before the date of the act; but this act was amended by the act of March 2, 1897 (29 U. S. Stats. p. 618), so that aliens may acquire title to lands in this Territory as follows: 1st. Aliens who have become citizens or have declared their intention to become citizens of the

LAWS OF TERRITORY OF NEW MEXICO.

United States. 2d. Aliens whose right to hold title is secured by treaty. 3d. Aliens who
are bona fide residents of the United States, provided that when said alien ceases to become
a bona fide resident he must within ten years dispose of lands acquired while a bona fide
resident. 4th. Aliens holding lots in cities, towns, and villages, or in any mine or mining
claim. 5th. Aliens may acquire lands by inheritance or in ordinary course of justice in
collection of debts, or by loaning money on real estate security and acquiring title thereto
under such liens, provided that lands thus acquired shall be sold within ten years after the
title is so acquired. The penalty for violation of this act is by proceedings to escheat the
land to the United States; but before any such suit to declare a forfeiture, the attorney-
general must give ninety days' notice to the party against whom suit is to be brought of
intention to bring such suit; and the defendant in any such suit may, at any time before
final judgment against him, show the court that he has complied with this law by becoming
a bona fide resident, etc., and, such compliance being admitted or proved, such suit shall
be dismissed on payment of costs and attorney's fees.

Appeals.Appeals and writs of error from all judgments in courts of justices of the peace, including judgments in forcible entry and detainer cases, may be taken to the district court of the county by the party aggrieved within ten days after rendition of judgment, upon application by such party and by giving bond to the adverse party in a sum sufficient to secure the amount of the judgment, conditioned to pay judgment and costs in case judgment be affirmed or appeal dismissed. If the justice of the peace shall wrongfully refuse to allow an appeal, the appeal may be taken by proceedings commenced in the district court under §§ 3309, 3310, 3315, Comp. Laws N. M. 1897.

Appeal from any decision of a probate court, except in the approval or disapproval of wills, is taken by filing, within ninety days of the date of such decision, a motion for appeal, together with a bond with two or more sureties, conditioned to prosecute the appeal with diligence and effect and pay all costs of such appeal lawfully adjudged against appellant. The probate clerk then transmits to the clerk of the district court such papers and copies of records as the appellant designates in writing, which the clerk of the district court dockets in the district court, whereupon the cause is tried de novo in the district court as other causes are tried in that court. (Session Laws 1903, p. 158, § 40.)

Any person aggrieved by any final judgment or decision of any district court, in any civil ease, may, at his election, sue out an appeal or take a writ of error to the supreme court, at any time within twelve months after the entry of the same and have a supersedeas. (Code, § 161.) When no supersedeas bond is filed, appellant must file with clerk of district court, and plantiffs in error with clerk of supreme court, a bond for court costs. (Session Laws 1899, pp. 167, 168.)

Sec. 3136, Comp. Laws N. M. 1897, provides for appeals from interlocutory judgments and decrees determining the rights and interests of parties in partition suits; § 160, Code N. M., provides for appeals and writs of error from a refusal of a district court to set aside a nonsuit; and Session Laws N. M. 1899, § 8, p. 170, provide for appeals and writs of error from orders or judgments discharging attachments; but the supreme court of N. M. in three cases, decided in 1902, held no appeal or writ of error could be taken from an interlocutory order or judgment because in conflict with the Organic Act for N. M. (Jung v. Meyer, 68 Pac. 933; Machen v. Keeler, 68 Pac. 937; Board Co. Com. v. Blackington, 68 Pac. 938.) Appeals, when applied for in open court at the term when decree is rendered, require no citation to adverse party; but, when applied for at any other time within the twelve months allowed, it is the duty of the clerk of the court from which appeal is taken to issue a citation to the opposite party to appear in the supreme court to answer such appeal.

Execution is stayed in cases so appealed, when the decree is against an executor, administrator, or county or other municipal incorporation in his or its capacity as such, and in al! other cases when the appellant shall, within ninety days after the decree appealed from becomes final, give bond in a sum to be fixed by the district court or judge thereof, with sufficient sureties, to be approved by such court or judge, to the adverse party, conditioned to prosecute his appeal with due diligence, perform the decree of the district court, and pay all damages and costs adjudged against him in the supreme court, if the decree appealed from be affirmed or dismissed.

Execution is stayed in causes reviewed by writ of error by the party applying for such writ, or some responsible person for him, filing, within three months of the entry of the judgment or decision, with the clerk of the court issuing such writ, a bond executed to the adverse party in double the amount of the judgment complained of, with sufficient securities, to be approved by said clerk, conditioned for the payment of such judgment and all costs adjudged in case the writ be dismissed or judgment affirmed.

Upon affirming any judgment or decision, the supreme court may award the appellee or defendant in error damages not to exceed ten per cent. on the amount of the judgment com. plained of. This has been awarded where the appeal or writ of error was regarded by the court as taken on frivolous grounds and for delay only.

Arrest. All statutory provisions under which debtors might be arrested were repealed. Session Laws 1901, p. 101, except § 3131, Comp. L. 1897, which provides that no execu tion against the body of execution debtor shall issue except in cases of fraud and personal injuries.

Assignments.-Sections 2818-2870, C. L. of 1897, contain the assignment laws in force upon the taking effect of the national bankrupty act of 1898.

Attachment.- Creditors whose demands amount to fifty dollars may sue in the district court by attachment in the following cases, namely, 1st. When the debtor is not a resident of nor resides in this Territory. 2d. When the debtor has concealed himself, or absconded or absented himself from his usual place of abode in this Territory, so that the ordinary process of law cannot be passed upon him. 3d. When the debtor is about to remove his property or effects out of the Territory, or has fraudulently concealed or disposed of the same, so as to hinder, delay, or defraud his creditors. 4th. When the debtor is about fraudulently to convey or assign, conceal, or dispose of his property or effects, so as to hinder, delay, or defraud his creditors: 5th. When the debt was contracted out of this Territory and the debtor has absconded or secretly removed his property or effects into the Territory with intent to hinder, delay, or defraud his creditors. 6th. When the defendant is a corporation whose principal office or place of business is out of the Territory, unless such corporation has a designated agent in the Territory upon whom service of process may be made in suits against it. 7th. When the defendant has fraudulently contracted the debt, incurred the obligation, or obtained credit from the plaintiff by false pretenses respecting the matter for which the suit is brought. Attachment may issue upon a claim or demand not matured.

Shares or any interest in any corporation doing business in the Territory, whether domestic or foreign, may be attached in the following manner: "The officer in whose hands the attachment is placed shall indorse an entry thereon of his levy on the corporate shares or interest of the defendant, and shall forthwith serve a copy of the attachment so indorsed upon the president of the company or corporation at the office of the company, or by leaving the same at the usual and most notorious place of doing business of such company or corporation in this Territory, which entry and service shall amount to and be considered a seizure of said corporate interest or shares, to all intents and purposes, and under an exe cution issued on such attachment may be sold as in other cases of ordinary execution." There is no distinction between resident and non-resident plaintiffs. A non-resident plaintiff may sue out a writ of attachment against a non-resident, and attach property on the ground of the non-residence of defendant.

The writ may be sued out by filing with the clerk of the court a bond payable to the Territory in a sum at least double the amount claimed, signed by two or more sureties, and conditioned that the plaintiff shall prosecute his said action without delay and with effect, refund all sums of money that may be adjudged to be refunded to the defendant, and pay all damages that may accrue to any defendant or garnishee by reason of said attachment or any process of judgment thereon, which said bond must be approved by the clerk; and also by filing an affidavit in the following form, to wit:

TERRITORY OF NEW MEXICO, 38.

COUNTY OF

This day personally appeared before me, the undersigned, clerk of the court, A. B. for C. D., agent for A. B.), and being duly sworn says that E. F. is justly indebted to the said A. B., after allowing all just offsets, and that the said E. F. is (setting forth one of the causes of attachment). A. B. (or C. D., agent for A. B.) A. D. 19

Sworn to and subscribed before me this

day of

G. H., Clerk. The affidavit may be made and bond executed by an agent. The sureties must be residents of the Territory. The proceedings are prescribed by the Compiled Laws.

The attachment may be dissolved by successfully contesting the truth of the ground of attachment specified in the affidavit, or by the defendant executing a bond to the plaintiff conditioned to perform the judgment of the court (Sess. Laws 1899, § 10, p. 170), and then the suit proceeds as an ordinary action. The writ of attachment is in the usual form, and runs against all the property, money, goods, chattels, effects, and credits of the defendant. See Garnishment and Appeals.

Chattel Mortgages. - All personal property except growing crops is subject to mortgage. Chattel mortgages, or other instruments of writing having the effect of a mortgage or a lien upon personal property, must be acknowledged and recorded in the same manner as conveyances affecting real estate, and are void as to creditors, or subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless within the thirty days next preceding the expiration of one year, and each year thereafter, the mortgagee, his agent or attorney, shall make and file with such mortgage an affidavit exhibiting the interest of the mortgagee in the mortgaged property at the time of such filing, and, if such mortgage is to secure the payment of money, the amount remaining due. Such affidavit must be recorded in a book kept for the purpose by the recorder, upon the margin of which there must be a reference to the book and page where the mortgage to which it relates is recorded. The records of such mortgage and affidavit, or certified copies thereof, may be used in evidence upon proof that the mortgage or affidavit is lost, or not in the possession of the person wishing to use the same. If such affidavit is made and filed even after the expiration of the year but before any other mortgage is deposited or any purchase of the mortgaged property made, or other lien obtained thereon in good faith, it is sufficient to continue the mortgage in force. A copy of such mortgage, including any such affidavit, certified by the recorder in whose office the same shall be filed, shall be received as evidence that the same was received and filed according to the indorsement of

the recorder thereon. In the absence of a stipulation to the contrary, the mortgagor has the right to the possession of the property.

After condition broken the mortgagee may sell the property, or so much thereof as mav be necessary to satisfy the mortgage and costs of sale, at public vendue, between the hour of nine o'clock in the morning and sunset of the same day, after notice, stating the time and place of such sale and a full description of the property to be sold, published for four weeks, in English or Spanish, as the officer conducting such sale may deem will give the most extensive notice in the county where the property is situated; or, if no newspaper be published in said county, then in the newspaper chosen as the official paper for such county, and also by posting six such notices in six of the most public places in said county. (§ 3113, Comp. Laws N. M. 1897.) If the mortgagee or his assignee shall obtain possession of the mortgaged property, either before or after condition broken, the mortgagor, or any subsequent mortgagee, may demand a sale of such property, and in such case the mortgagee shall sell.

Claims against Estates-Must be entitled in the name of the claimant against the executor or administrator as such, and be stated in detail, sworn to, and filed with the proper probate court within one year from tue date of the appointment of the executor or administrator; and also within such time five days' notice of the hearing upon such claim, and a copy of the claim, must be served upon the executor or administrator, unless the claim be approved in writing signed by the executor or administrator, in which case the claim may be allowed by the court without such notice. All claims so filed not expressly admitted in writing signed by the executor or administrator are considered denied by the executor or administrator, but the court may consider and allow or reject the same. If allowed, the executor or administrator may within six months after the allowance, but not to exceed eighteen months after the appointment of such executor or administrator, appeal from such allowance to the district court. If the claim be rejected the claimant may with like limitations as to time either appeal to the district court or bring his action in that court against the executor or administrator.

Payments of claims against estates are made from the proceeds of the assets, as follows: 1. Expenses of administration. 2. Charges of last sickness and funeral of deceased. 3. Any allowance which may be made by the court for the maintenance of the widow, and of the children under fifteen years of age, sufficient to maintain them for six months from the death of decedent. 4. Claims entitled to preference by express provision of United States or Territorial laws. 5. Taxes. 6. All other debts prò rata. 7. Legacies pro rata. (See § 2002, Comp. Laws N. M. 1897.)

Preference in appointment of administrators is given, 1st. To the surviving husband or wife of deceased. 2d. If there be no surviving husband or wife, then to those entitled to distribution of the estate, or some one or more of them, whom the probate judge shall believe will best manage the estate. 3d. If no such person apply within thirty days after death of deceased, then any creditor of the estate. 4th. If none of these apply for letters, then the probate judge may select such discreet person as he may choose, or he may direct the sheriff of his county to take possession of the estate, sell the same, and after payment of debts deliver any remainder of proceeds to the treasurer of the county, who shall hold the same for one year, when any such balance, in the absence of any application to be appointed administrator of such estate, escheats to the county.

Before any administrator can act as such he must give bond to the Territory of New Mexico, with two or more sureties, residents of the county where letters of administration are granted, in such sum as the probate court shall deem sufficient, but not less than double the estimated value of the estate, such bond to be conditioned for the faithful performance of his duties as administrator, which bond must be recorded in the probate clerk's office before the letters of administration are delivered to the administrator.

The administrator must account to the probate court at the first term after the end of one year from the date of his letters of administration, and yearly thereafter.

In suits against the heirs, executors, administrators, or assigns of deceased persons, an interested party to the suit cannot obtain judgment on his own testimony in respect to any matter occurring before the death of the deceased, unless such evidence be corroborated by some material evidence.

Claims, Proof of.-See Proof of Claims.

Conditional Sales.-There is no statute on this subject, except so far as the provisions as to chattel mortgages, q. v., may affect some kinds of conditional sales, but such sales are enforced here. (See Maxwell v. Tufts, 8 N. M. 396.)

Consignments. There is no statute on this subject, but there are statutes relative to embezzlement and fraudulent conversion, the provisions of which are probably broad enough to cover similar offenses by consignees of goods, and which make such offenses larceny.

Corporations. By sec. 1889, Rev. Stat. U. S., and act of Congress approved June 8, 1878, the legislative assemblies of the several territories were prohibited from granting private charters or especial privileges, but were authorized to pass general incorporation acts to permit persons to associate themselves together as bodies corporate for mining, manufacturing, and other industrial pursuits, and for conducting the business of insurance, banks of discount and deposit (but not of issue), loan, trust, and guarantee associations, and for the construction or operation of railroads, wagon-roads, irrigating duches, and the col