LAWS OF NEW HAMPSHIRE

RELATIVE TO THE

COLLECTION OF DEBTS,

TAKING OF DEPOSITIONS, ETC.

PREPARED EXPRESSLY FOR HUBBELL'S LEGAL DIRECTORY, DECEMBER 1, 1906, BY STREETER AND HOLLIS, OF CONCORD, NEW HAMPSHIRE.

Acknowledgments. See Deeds.

Actions. The forms of original process are: writs of attachment, capias, replevin, and trustee process. There are also writs of scire facias and dower. (P. S. ch. 218.) In actions brought by non-residents, the writ must be indorsed by some responsible resident, who is thereby made liable for the costs. (P. S. ch. 218, § 8.)

No security for costs is required of residents, save in cases of appeal.

If either party resides in this State, transitory actions should be brought in the county in which one of the parties resides. (P. S. ch. 216, § 1.) In actions against a decedent's estate, the decedent's residence goverùs instead of the executor's. (Laws of 1905, ch. 94.) Parties are not entitled of right to a review of actions; but the court may grant a new trial where justice has not been done through accident, mistake, or misfortune, provided the party aggrieved petitions therefor within three years after the rendition of the judg ment complained of or the failure of the suit. (P. S. ch. 230.) See Limitations.

--

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

Affidavits- May be made before any officer by whom a deposition may be taken. No particular form is required. Affidavits are not admissible as evidence in actions at law. See Depositions.

Aliens. Resident aliens may hold, purchase, sell, devise, or transmit by descent property the same as native born citizens. (P. S. ch. 137, §§ 16, 17.)

Appeals May be taken from all decisions of the probate court to the superior court; must be claimed in writing within sixty days from the decision; and security for costs and to prosecute the appeal must be given. (P. S. ch. 200, §§ 1, 2, 3; Laws of 1901, ch. 78, § 2.) Appeals may also be taken from any police or justice's court to the superior court; must be claimed within two hours after judgment is rendered; and the party appealing must, within twenty-four hours, recognize or give bond in the sum of one hundred dollars to pay the costs which may be recovered against him. (P. S. ch. 210, §§ 7, 8; ch. 211, $13.)

Arrest. No sheriff or voter on election days is liable to arrest upon civil process, nor any woman in action founded upon contract or upon a conditional sale of clothing; nor is any person so liable in any real action or action of ejectment, nor in any action founded on a contract unless the debt exceeds thirteen dollars and thirty-three cents, nor then unless it appear by affidavit of the plaintiff, or some person for him, indorsed on the back of the writ or execution, that the defendant is, in his belief, justly indebted to the plaintiff in a sum exceeding thirteen dollars and thirty-three cents; and that he conceals his property, or is about to leave the State to avoid payment of his debts. (P. S. ch. 221; Laws of 1905, ch. 47.)

Assignments. ruptcy act of 1898. Attachments. In most actions, any property which may be taken upon execution may be attached and holden as security for the judgment the plaintiff may recover. (P. S. ch. 220, § 1.)

The state law upon this subject is suspended by the national bank

Real estate is attached by the officer leaving an attested copy of the writ and of his return thereon at the dwelling-house or office of the town clerk of the town where the property is situated. (P. S. ch. 220, § 3.)

All movable property is taken possession of by the officer on making the attachment. The attachment of lumber, brick, and other bulky articles may be preserved by leaving an attested copy of the writ and officer's return thereon with the town clerk, as in the attachment of real estate, within forty-eight hours after the attachment is made, without retaining actual possession thereof. (P. S. ch. 220, § 16; Laws of 1905, ch. 43.) In all cases where an attachment is made, an attested copy of the writ should be served on the defendant, by giving in hand or leaving at his abode, at least fourteen days before the sitting of the court to which it is returnable. (P. S. ch. 219, §§ 1, 2.)

The property of the defendant in the hands of a third person, and debts due the defend

ant, may be attached by trustee process, service being made upon the defendant and trustee, as in other cases. No trustee is chargeable for pensions or bounty money, or for the services or earnings of the wife or minor children of the defendant, or for the defendant's own earnings after service of writ, or for his earnings to the amount of twenty dollars before service of writ on trustee, except for necessaries. (P. S. ch. 245, § 20.)

Property attached is holden for thirty days from the rendition of judgment, and the levy of the execution must be commenced within that time. (P. S. ch. 220, § 40.)'

No valid attachment can be made to secure claims not due at the commencement of the action. Attaching creditors acquire a lien in the order of their attachments, and do not share in the attached property pro rata. See also Trustee Process.

Chattel Mortgages. Personal property and crops, matured or growing, may be mortgaged. The mortgagee must take and retain actual possession of the chattels mortgaged, or the mortgage must be recorded in the office of the clerk of the town where the mortgagor lives at the time of making the same, if he resides within the State; otherwise where the property is located. No chattel mortgage is valid, save as between the parties thereto, unless the above provision of law is complied with, nor unless both of the parties subscribe and make oath to the following affidavit, which must be made upon the mortgage and recorded therewith:

"We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the condition thereof, and for no other purpose whatever, and that said debt was not created for the purpose of enabling the mortgagor to execute said mortgage, but is a just debt, honestly due and owing from the mortgagor to the mortgagee. So help us God."

When a firm is a party, any partner may make and subscribe the affidavit; and when a corporation is a party, that may be done by any director or any other authorized person. If the mortgage is given for any other purpose than to secure a debt due from the mortgagor to the mortgagee, the agreement or liability upon which the mortgagee is indemnified or secured must be specifically stated in the mortgage, and the above affidavit so far varied as to verify the validity, truth, and justice of such liability or agreement.

The mortgagee may sell the property at auction at any time after thirty days from condition broken, posting notices of the sale in two public places in the town, and giving the mortgagor, if he resides in the town, a written notice of the sale at least four days prior thereto; and may apply the net proceeds thereof to his debt. (P. S. ch. 140.)

A chattel mortgage cannot be so drawn in this State as to cover future acquisitions, except that after-acquired property may be included in mortgages made by corporations to secure their debts.

Claims against Estates of Deceased Persons. All claims against the estates of deceased persons must be prosecuted within two years after the grant of administration, but suit thereon cannot be maintained if commenced within one year, nor before payinent is demanded. Demand must be made within one year after original grant of administration. (P. S. ch. 191, §§ 1-4; Laws of 1899, ch. 2.)

In granting letters of administration preference is given to, 1, the executor named in the will: 2, the widow, or any of the next of kin, or such suitable person as they or any of them may nominate: 3, one of the devisees or creditors; 4, such other person as the judge may think proper. (P. S. ch. 188, § 2.) Non-residents may be appointed if the circumstances, in the opinion of the judge, render the same proper. A non-resident administrator must appoint a resident his agent to receive notice of claims and service of process. (P. S. ch. 188, §§ 4, 24.)

A bond with sufficient sureties in such reasonable sum as the judge shall approve must be given, conditioned: 1. To return to the judge a true and perfect inventory of the estate of the deceased, upon oath, within three months from the date of the bond. 2. To administer the estate according to law. 3. To render to the judge an account of administration, upon oath, within one year. 4. To pay and deliver the rest and residue of the estate which shall be found remaining upon the account of the administrator to such person or persons respectively as the judge, by his decree, according to law, shall limit and appoint. 5. To deliver the letters of administration into the court of probate, in case a will of the deceased shall thereafter be approved and allowed. (P. S. ch. 188, § 12.)

Administrators must within ten days after their appointment post notice thereof at some public place in the town where the deceased dwelt, if in this State, and cause it to be published. (P. S. ch. 188, § 15.)

All claims against an estate shall, if required by the administrator, be exhibited under cath, as follows: "I do solemnly swear that, according to the best of my knowledge and belief, the above is a true statement of my claims against the estate of late of and that I have not on my books or elsewhere any credit, nor have I any knowledge of any credit or offset that should be allowed against my claim, except what is stated in the foregoing account. So help me God." (P. S. ch. 188, § 20.)

The judge is given the power to make the widow a reasonable allowance for her present needs.

Estates are distributed in the following order: 1. Expenses of administration. 2. Funeral expenses. 3. A reasonable allowance to the widow. 4. The just debts owed by the deceased. 5. The support and maintenance of infant children until seven years of age if the estate is in fact solvent. 6. Legacies. (P. S. ch. 189, § 17.)

2

Any estate may be decreed to be administered as if insolvent, on application of the administrator within one year from the original grant of administration, and in such case the claims against the estate must be presented to and allowed by commissioners appointed by the probate court, within the time (from six to nine months) prescribed by the judge, or they are barred. The judge of probate may extend the time of the commissioners' hearings for sufficient cause, upon payment of expenses of such extension. Taxes and claims for last sickness are preferred to other debts. Either the administrator or creditor, or an heir, or another creditor, may appeal from the commissioners to the superior court. (P. S. cbs. 192. 193; Laws of 1903, ch. 15.),

Claims, Proof of. - See Proof of Claims.

Conditional Sales.—In a conditional sale of personal property, the vendor loses his lien upon the property when it is delivered to the vendee, unless the vendee gives the vendor a written memorandum stating the lien and the sum due thereon, and the vendor and vendee make and subscribe an affidavit upon said memorandum, in substance as follows: "We severally swear that the foregoing memorandum is made for the purpose of witnessing the lien and the sum due thereon, as specified in said memorandum, and for no other purpose whatever, and that said lien and the sum due thereon were not created for the purpose of enabling the purchaser to execute said memorandum, but said lien is a just lien, and the sum stated to be due thereon is honestly due and owing from the purchaser to the vendor." Such memorandum must be recorded, within twenty days after the prop erty is delivered, in the town clerk's office of the town (1) where the vendee resides, if in this State; (2) where the vendor resides, if in the State and the vendee does not reside in the State; (3) where the property is situated if neither the vendor nor vendee reside in the State. If not recorded within the twenty days, the lien will be valid against such creditors and purchasers only as become such subsequently to the record. (P. S. ch. 140, §§ 23–26.) The foregoing does not apply to leases of household goods containing an option to purchase at a specified time. Consignments. Corporations. Five or more persons of lawful age may form a corporation for the carrying on of any lawful business or for any lawful purpose except banking, life insurance, the making of contracts for the payment of money at a fixed date or upon the happening of some contingency, the construction and maintenance of railroads, and the issue, sale, or redemption of trading stamps or similar devices. (P. S. ch. 147, § 1; Laws of 1905, ch.70.)

There is no statute on this subject.

The articles of association shall be filed with the secretary of state and also in the office of the town clerk of the town where the corporation is located. (P. S. ch. 147, § 4.)

The fees of the secretary of state and town or city clerk for recording the articles of association are from two to five dollars each, according to the length of the document. Corporations which are not to carry on business and have a principal office within the State must pay an additional charter fee upon the largest amount of capital authorized, as follows: Not exceeding twenty-five thousand dollars, ten dollars; from twenty-five thousand dollars to one hundred thousand dollars, twenty-five dollars; from one hundred thousand dollars to five hundred thousand dollars, fifty dollars; from five hundred thousand dollars to one million dollars, one hundred dollars. (Laws of 1895, ch. 18.)

There is no annual state tax, the property of the corporation being taxed upon the same basis as property of individuals. See Tax Law.

The capital stock shall be not less than one thousand nor more than one million dollars, divided into shares of not less than twenty-five nor more than five hundred dollars each. (P. S. ch. 147, § 6.) All capital must be paid in. (P. S. ch. 150, § 8.)

Corporations may admit associates and members, and for just cause remove them; elect all necessary officers, define their duties, and fix their compensation; have a common seal; sue and be sued, appear, prosecute, and defend, and appoint agents and attorneys for that purpose, and have perpetual succession unless otherwise provided, or unless dissolved as by law provided. (P. S. ch. 148, § 3.)

There must be at least three directors, one of whom shall be a resident of the State, if any

stockholders reside in the State.

Corporations may change their names, increase or decrease their capital stock or amend their articles of association, by a majority vote at a meeting called for the purpose, and by recording a copy of said vote as required for the articles of association of voluntary corpora

tions.

Corporations may make all contracts necessary and proper for the transaction of their authorized business and no other, and they are not capable of binding themselves as sureties or guarantors. (P. S. ch. 148, § 7.) They may purchase, hold, and convey real and personal estate necessary and proper for the transaction of their authorized business. (§ 8.) They may take mortgages or make attachments to secure the payment of debts due them. (§ 9.)

Every corporation must have a clerk who must be an inhabitant of this State and keep his office here. He shall keep a record of all proceedings of the corporation and of its managing officers, and of all papers required to be recorded in his office, and perform all other duties incumbent on him by law, usage, or the by-laws of the corporation. He must be sworn to the faithful discharge of his duties. (§§ 10, 11.)

A stockholder who shall unlawfully receive a loan from the corporation or a sum unlaw

fully withdrawn or refunded from the capital stock thereof, or who shall knowingly accept or receive a dividend unlawfully made, shall, to the amount by him received, be individually liable for the debts of the corporation then existing or afterwards contracted, until the same is repaid. (P. S. ch. 150, § 7.)

Every stockholder, except in banks and railroads, shall be liable for all debts and contracts of the corporation until the whole amount of the capital fixed and limited by the corporation shall have been paid in, and a certificate thereof, under oath, signed by the treasurer and a majority of the directors, has been filed and recorded by the clerk of the city or town where such corporation has its principal place of business. (P. S. ch. 416, § 8.)

Every corporation, except insurance companies, railroads, banks, and building and loan associations, shall annually in the month of May make return under oath of the treasurer and a majority of the directors, to the secretary of state and clerk of the town in which its principal business is carried on if within this State, of the amount of all assessments voted by the corporation and actually paid in, the amount of all debts due to and from the corporation, and the value of all the property and assets of the corporation, so far as the same can be determined as existing on the first of May; and if any such corporation shall fail so to do, the treasurer and directors shall be individually liable for all the debts and contracts of the corporation then existing, or which shall be contracted until the return is made. (P. S. ch. 150, § 16.)

Stockholders in corporations complying with all provisions of law are liable only to the amount of the par value of the stock for which they subscribed.

When a domestic corporation is party to, or garnishee in, any legal proceeding in the State, any non-resident director, officer, or agent may, by order of the superior court, be summoned to appear and testify in such proceeding, or give his deposition for use therein before a special commissioner appointed by said court, and to produce all corporate books and papers in his control material to such proceeding. The summons may be served by attested copy within or without the State, and if the summons is willfully disobeyed the superior court may, in its discretion, appoint a receiver for the corporation until the court's reasonable orders are complied with. (Laws of 1903, ch. 37.)

Foreign corporations cannot acquire land for hunting, fishing, and similar purposes without becoming reincorporated by New Hampshire laws (Laws of 1901, ch. 9), but may hold title to land with this exception. They are taxed only on property within the State, which is taxed like other property of same nature.

Courts, Jurisdiction and Terms of. See Court Calendar for New Hampshire. Curtesy. The husband is entitled to curtesy in deceased wife's realty, as at common law. See Descent and Distribution and Married Women.

Deeds.- Deeds and other conveyances of real estate must be signed and sealed by the grantor, attested by two or more witnesses, acknowledged before a justice, notary public, or commissioner, whether within or without the State (but if before a justice without the State his official character should be authenticated by the clerk of a court of record or by the secretary of state), or before a minister or consul of the United States in a foreign country. They should be recorded at length in the registry of deeds in the county in which the lands are situated. If the wife's only interest in the real estate conveyed is dower, the deed should contain a release of dower, and the wife should sign it, but need not acknowledge it. If the wife has also a homestead right, the deed should contain a release of that, and she should sign and acknowledge it the same as the husband. If the real estate conveyed belongs to the wife in her own right, it is advisable that the husband should join in it, so as to bar his rights of curtesy and homestead.

The identity of the grantors need not be certified by the magistrate.

A scroll is not a sufficient seal upon a deed or any other instrument required to be sealed. [Certificate of Acknowledgment by Husband and Wife.]

STATE OF
COUNTY OF

}

88.

Personally appeared the above-named George Crittenden and Jane E. Crittenden, his wife, and acknowledged the foregoing instrument to be their voluntary act and deed, this day of 19. Before me, (Signature and title.)

The certificate of acknowledgment may be printed, written, or typewritten upon the instrument, or upon a separate paper annexed thereto.

Any public or private corporation, authorized to hold real estate, may convey the same by any agent appointed for that purpose. (P. S. ch. 137.)

Depositions. The depositions of witnesses in any civil cause may be taken and used at the trial, unless the adverse party procures the witness to attend, upon giving notice signed by a justice or notary, stating the day, hour, and place of taking, three days before the caption, where the party resides within ten miles of the place of caption, and one day additional for every twenty miles, provided that twenty days' notice shall in all cases he sufficient. Where the adverse party resides out of the State, or more than twenty miles from the place of caption, or from the party proposing to take the deposition, the notice of the caption may be served on the attorney of such adverse party.

Any justice or notary public in this State, any commissioner appointed under the laws of this State to take depositions in other States, any judge, justice of the peace, or notary public in any other State or country, may take such depositions. When the deposition is

taken by a justice out of the State, the official character of the person taking it must be duly certified to by some clerk of a court of record under its seal, or by the secretary of state under the seal of the State, and that certificate must be attached to the caption.

No person who would be disqualified to act as a juror on the trial of the cause can write the testimony of the witness, or act as magistrate in the taking of the same.

The deposition must be signed by the witness, and after so doing he must make oath that the same contains the truth, the whole truth, and nothing but the truth, relative to the cause for which it was taken. The magistrate or officer taking the deposition must annex a caption to the deposition, substantially in the following form:

STATE OF

COUNTY OF

}

Personally appeared before me, the subscriber, a the within na:ned A. B., at the office of in in said county, on the day of 19 and made solemn oath that the within deposition by him subscribed contains the truth, the whole truth, and nothing but the truth, relative to the cause for which it was taken. The said deposition is taken at the request of C. D., of to be used at the court of the State of New Hampshire, to be held at in and for the county of on the day of next, in is plaintiff, and said C. D. is defendant; and the taking of o'clock in the noon, on said first mentioned day, and con

a plea wherein of
the same was begun at
tinued until the whole was completed.
The said

being duly notified, was present (or was not present, as the case may be) and did not object. (Signature and titie.) When the adverse party does not attend the caption, a copy of the notice which has been served upon him or his attorney, with the return of the officer, or the affidavit of the person serving the same, indorsed thereon, stating the time of serving the same, must, and in other cases should, be annexed to the caption of the deposition.

The deposition should be sealed in an envelope, and directed to the clerk of the court where it is to be used, and upon the envelope should also be written the following: Inclosed is a deposition to be used in the action in which is plaintiff and C. D. is defendant, sealed up by (Signature and title.)

It should be sent to the clerk of the court in which the action is pending within ten days after the taking thereof. (P. S. ch. 225.)

By agreement of parties depositions may be taken stenographically and reduced to writing. Commissioners appointed for the purpose by courts of record of other States and countries may take depositions in this State for use in civil causes pending in such States and countries, and have power to compel the attendance of witnesses and the production of papers. (Laws of 1903, ch. 21, § 4.) See also Corporations.

Descent and Distribution of Property. The real estate of every person deceased, intestate, subject to dower or curtesy and homestead rights, descends in equal shares: 1st. To the children or their legal representatives. 2d. If there be no issue, to the father and mother if both are living, and to the survivor of them if one be dead. 3d. If there be no issue or parents, to the brothers and sisters, or their representatives. 4th. To the next of kin. The heirs of a bastard, in the ascending line, are the mother and her heirs. In the estate of the mother of bastards, or her kindred, legitimate and illegitimate children share equally.

No representation is allowed among collaterals beyond the degree of brothers' and sisters' grandchildren.

There is no distinction between heirs of the full and half blood.

Personal estate not bequeathed after settlement of administration account is distributed : 1st. To the widow, the share by law prescribed. 2d. The residue in equal shares to the same persons to whom the real estate would, by law, descend. (P. S. ch. 196; Laws of 1903, ch. 74.)

The surviving husband or wife of a decedent, by waiving the provisions of the will (if any) in favor of such survivor, is entitled to the following share of the personal estate, and by also releasing curtesy or dower and the homestead right, may take in lieu thereof, in fee, a like share of the real estate one third, if decedent leaves issue by such survivor; if decedent leaves no issue, fifteen hundred dollars where value of whole does not exceed three thousand dollars, one half where such value is in excess of three thousand dollars. (P. S. ch. 195, §§ 10-13; Laws of 1901, ch. 113.)

A tax of five per cent. is imposed on all real and personal property passing by inheritance, will, or gift to take effect on the grantor's death, to any person in trust or otherwise, other than to or for the use of the father, mother, husband, widow, lineal descendant, brother, sister, adopted child, lineal descendant of any adopted child, wife, or widow of a son or husband of a daughter of a decedent, or to or for charitable, educational, or religious bodies the property of which is exempt by law from taxation, or to a city or town in this State for public purposes. The tax applies to bonds and stocks physically within the State belonging to a non-resident. The tax is a lien on all real estate of the deceased till paid. The probate court has jurisdiction of all questions relating to the tax.

Transfers of stock in national banks in this State, or of stock in domestic corporations belonging to a deceased non-resident, shall not be made until any such tax payable thereon is satisfied, and depositaries of securities belonging to a deceased non-resident are required