Testimony. In suits and proceedings before any court or officer, other than criminal cases, there must be no exclusion of any witness because he is a party, or interested, except that neither party shall testify against the other as to any transaction with or statement by any deceased person, whose estate is interested in the result of the suit, or when such deceased person at the time of such transaction or statement acted in any representative or fiduciary relation to the party against whom such testimony is sought to be introduced. (Code of Ala. § 2765.) See Depositions. Courts of law may on motion and due notice thereof require parties to produce at the trial books or writings in their possession which contain evidence pertinent to the issue in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceedings in chancery. (Acts of 1894-95, p. 60.) A convict's evidence may be taken by deposition. (Acts 1894-95, p. 860.)

Trust Deeds. - Mortgages of real or personal property are usually executed with powers of sale. Such powers of sale can be executed by an assignee or personal representative of any person who by assignment or otherwise becomes entitled to the money secured. Deeds of trust are in use, and in many respects are more available, especially for non-residents.

Wills. All persons of the age of twenty-one years, and of sound mind, may devise lands or any interest therein, by their last will; persons of the age of eighteen years may also dispose of all their personal property by their last will. No will is effectual (except nuncupative wills, by which only five hundred dollars' worth of personal property can be bequeathed), unless the same is in writing (if properly executed, a typewritten will would undoubtedly hold); signed by the testator, or some person in his presence, and by his direction, and attested by at least two witnessess, who must subscribe their names thereto in the presence of the testator. Wills are executed out of the State in the same way as within the State. They are recorded in the office of the judge of the probate court. (Code of Ala. § 1966 et seq.)

LAWS OF ARIZONA TERRITORY

RELATIVE TO THE

COLLECTION OF DEBTS,

TAKING OF DEPOSITIONS, ETC.

PREPARED EXPRESSLY FOR HUBBELL'S LEGAL DIRECTORY, OCTOBER 1, 1896, BY HERNDON AND NORRIS, OF PRESCOTT, ARIZONA.

Acknowledgments.

See Deeds.

:

Actions. There is but one form of action in the Territory. Suits in courts of record are commenced by filing a complaint in the office of the clerk of the court. The defendant in his answer may plead as many several matters, whether of law or fact, as may be necessary for his defense the law issues to be first disposed of. Actions must be prosecuted in the name of the real party in interest, except such as may be brought by administrators and executors and trustees of an express trust, or by a person expressly authorized by statute; and, when real property is the subject of the issue, in the county where it is located in other cases, in the county where the defendants, or some of them, reside, unless expressly otherwise authorized by statute. Security for costs may be required by defendant, in the discretion of the court. The defendant is required to answer, (1) if served within the county, in ten days; (2) if served out of the county but in the district, in twenty days; (3) in all other cases, in thirty days. Upon affidavit that the defendant is a non-resident, or cannot be found, or is a foreign corporation, or his residence is unknown, or that he is a transient person, or conceals himself to avoid service of summons, the sheriff may serve the summons by publication. Personal service of a copy of the summons and complaint out of the Territory is equivalent to publication of summons.

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

Affidavits.-Affidavits must be in writing, signed by the party making the same, and made before either of the following officers: (1.) In the Territory, before a clerk of a district court or notary public. (2.) Without the Territory and within the United States, before any clerk of a court of record having a seal, any notary public, any commissioner of deeds duly appointed under the laws of this Territory within some other State or Territory. (3.) If without the United States, before any notary public, or any minister, commissioner, or chargé d'affaires of the United States resident in and accredited to the country where the affidavit may be taken; or any consul-general, consul, vice-consul, commercial agent, deputy consul, or consular agent of the United States resident in such country.

Aliens. Aliens who have not lawfully declared their intention to become citizens cannot acquire, hold, or own real estate so hereafter acquired, or any interest therein, except such as may be acquired by inheritance or in good faith in the ordinary course of justice, in the collection of debts heretofore created. (Act of Congress of March 3, 1887.)

Every alien to whom any land may be devised or may descend shall have five years to become a citizen of the Territory and take possession of such land, or shall have five years to sell the same before it shall be declared forfeited or shall escheat to the government; provided that the treaties of the United States with the nation to which such alien may belong do not otherwise direct; and provided further, that aliens may take and hold any property, real or personal, in this Territory, by devise or descent from any alien or citizen, in the same manner in which citizens of the United States may take and hold real and per sonal estate by devise or descent within the country of such alien.

Appeals. Appeals may be taken from a judgment of the justice's court to the district court within ten days; from a judgment, decree, or order of the probate court to the district court, within twenty days; and from a final decision of the district court to the supreme court, within twenty days after the adjournment of the term.

Writs of error may be sued out within one year after the final judgment was rendered. Arrest. Arrest in civil cases is abolished.

Assignments. Insolvent debtors and those contemplating insolvency may make assignments of their property for the benefit of their creditors. Every such assignment shall provide for a distribution of all the real and personal estate, other than that exempt by law from execution, owned by the debtor, among all his creditors in proportion to their respective claims. Every assignment shall be proved, acknowledged, and recorded as are conveyances of real estate. The debtor must annex an inventory to the assignment containing: A full and true account of all the creditors and their places of residence, if known, and, if not known, to be so stated; the amount owing to each, and the nature of each debt or

demand, the true cause and consideration of such indebtedness in each case, and the place where such indebtedness arose; a statement of any existing judgment, mortgage, collateral, or other security for the payment of such debt; a full and true inventory of the debtor's estate at the date of such assignment, both real and personal, in law or equity, and incumbrances existing thereon, and of all vouchers and securities relating thereto, and the value of such estate according to his best knowledge. The inventory must be sworn to as true.

Any debtor desiring so to do may make an assignment for the benefit of such of his creditors only as will consent to accept their proportional share of his estate and discharge him from their respective claims, and in such case the benefit of the assignment is limited to the creditors consenting thereto. The consenting creditors, when paid their proportional share, execute receipts which operate as a full release of the debtor for the whole of their claims against him. The assignee, within thirty days after execution of the assignment, must give public notice, in some newspaper in the county of his appointment, which must be published three weeks, and he must also, if he can, give personal notice or notice by mail to each of the creditors. The creditors consenting to the assignment must make known their consent to the assignee, in writing, within four months after publication of the above notice, and creditors not assenting will have no benefit of the assignment.

The assignee is required to give bond to be approved by the district judge.

Every creditor consenting to the assignment must, within six months from the first publication of the notice, file with the assignee a statement of the particular nature and amount of his claim, which must be supported by an affidavit of the creditor, his agent or attorney, that the statement is true, that the debt is just and there are no credits or offsets that should be allowed against the claim, except as shown by the statement. No creditor shall take any benefit under any assignment who neglects to make such statement.

Any creditor not consenting to the assignment may garnish the assignee for any excess remaining in his hands after paying consenting creditors the amount of their debts and cost and expenses of the assignment.

Every mortgage or deed of trust or other form of lien attempted to be given by the owner of any stock of goods, wares, or merchandise, daily exposed to sale in parcels in the regular course of the business of such merchandise, and contemplating a continuance of possession of such goods and control of said business by sale of said goods by the owner thereof, shall be fraudulent and void. Any attempted preference of one or more creditors is fraudulent.

Attachments.- Attachments issue on bond in the amount of the debt being given, and affidavit of plaintiff that defendant is indebted to plaintiff, and the amount and character of the demand: First, in an action upon a contract, express or implied, for the direct payment of money, where the contract is made or is payable in this Territory and is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property; or, second, when any suit be pending for damages, the defendant is about to dispose of or remove his property beyond the jurisdiction of the court in which the action is pending for the purpose of defeating the collection of the judgment; or, third, in an action upon a contract, express or implied, against a defendant not residing in this Territory, or a foreign corporation doing business in this Territory; and, fourth, that the attachment is not sought for wrongful or malicious purpose, and the action is not prosecuted to hinder or delay any creditor of the defendant."

Chattel Mortgages.- Chattel mortgages have no legal effect, except between the parties, unless the residence of the mortgagor and mortgagee, the sum to be secured, the rate of interest to be paid, and when and where payable, is set out in the mortgage; and the mortgagor and mortgagee shall make affidavit that the mortgage is made in good faith and without any design to defraud or delay creditors, which affidavit must be attached to the mortgage. Such mortgage, or a true copy thereof, is to be filed in the office of the county recorder, to be registered by the recorder. All personal property may be mortgaged, including increase of cattle and other live stock if so specified in mortgage; but a chattel mortgage on a stock of goods daily exposed for sale is void.

Any person who, after having mortgaged or otherwise incumbered his property by conveyance intended to operate as a mortgage, shall sell or otherwise dispose of the same, is guilty of a felony, unless at the time of making such sale he fully discloses the fact of such mortgage or incumbrance to the purchaser and also notifies the mortgagee in writing.

Any person who after having conveyed any article of personal property by mortgage shall sell or otherwise dispose of it, or remove it from the county where the mortgage is made, without first having written authority of the mortgagee, is guilty of a felony.

Contracts for the sale of personal property where title is to remain in vendor until purchase-money is paid are void, unless subscribed by the parties and recorded same as chattel mortgage.

Claims against Estates of Deceased Persons. The executor or administrator, immediately after his appointment, must cause to be published in some newspaper of the county a notice to the creditors of the decedent requiring all persons having claims against decedent to exhibit them, with the necessary vouchers, to the executor or adminis trator, at the place and within the time mentioned in the notice. The time expressed in the notice must be ten months from its first publication, when the estate exceeds in value three thousand dollars, and four months when it is less than that sum. Every claim when presented to the administrator for allowance must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been

made thereon which are not credited, and that there are no offsets to the same to the knowledge of affiant. If the claim be not due when presented or be contingent, the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant he must set forth in the affidavit the reasons why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths.

In granting letters of administration the preference is given, 1st, to the surviving husband or wife, or some competent person whom he or she may request to have appointed; 2d, the children; 3d, the father or mother; 4th, the brothers; 5th, the sisters; 6th, the grandchildren; 7th, the next of kin entitled to share in the distribution of the estate; 8th, the creditors; 9th, any person legally competent. If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate. Of several persons claiming and equally entitled to administer, males must be preferred to females, and relatives of the whole to those of the half blood. Non-residents of the Territory cannot act as administrator or executor. Bonds in double the amount of the value of the estate are required.

The widow is entitled to all the wearing apparel of the family, all the household furniture of the decedent, and is also entitled to a reasonable provision for the support of herself and minor children, and all property exempt from execution which would amount to one thousand dollars' worth of personal property, and also a homestead not to exceed in value four thousand dollars. If the whole value of the estate does not exceed two thousand dollars, then the whole of the estate shall be set apart to the widow and minor children, or the widow if no children, after first paying funeral expenses and expenses of last sickness.

The debts of the estate must be paid in the following order: 1. Funeral expenses. 2. The expenses of the last sickness. 3. Debts having preference by the laws of the United States. 4 Debts having preference by the laws of this Territory. 5. Judgments rendered against the decedent in his lifetime, and mortgages in the order of their date. 6. All other demands against the estate.

The administrator must make an accounting at least once a year. If the estate does not exceed in value three thousand dollars, the administration may be closed within six months after letters of administration are granted.

Corporations. Any number of persons may associate themselves together and become incorporated for the transaction of any lawful business. Before commencing any business, except that of their own organization, they must adopt articles of incorporation, which must be signed and acknowledged by them as deeds, and recorded in the office of the county recorder where the principal place of business is to be. The articles must con. tain (1) the names of the corporators, the name of the corporation and its principal place of business; (2) the general nature of the business; (3) the amount of capital stock authorized and the times when and the conditions upon which it is to be paid in; (4) the time of the commencement and termination of the corporation; (5) by what officers or persons the affairs of the corporation are to be conducted and the times at which they are to be elected; (6) the highest amount of indebtedness or liability to which the corporation is at any time to subject itself; (7) whether private property is to be exempt from corporate debts. Unless so exempted, stockholders are liable for the debts of the corporation in the proportion which their stock bears to the whole capital stock. The articles of incorporation must be published for at least six days in some newspaper published in the county in which the principal place of business of the corporation is located or works established. Corporations may commence business as soon as their articles of association are filed for record. The duration of private corporations shall be not longer than twenty-five years. Corporatious formed for the purpose of any work of internal improvement may endure for fifty years.

Foreign Corporations. — Corporations organized under the laws of any other State or Territory, before commencing business within this Territory, must make and file certified and duly authenticated copies of their articles of incorporation with the secretary of this Territory and the county recorder of the county where its principal place of business or principal office is located. Before transacting any business within this Territory such corporation must file with the secretary of the Territory, and the county recorder of the county in which such enterprise or business is proposed to be located or is located, the lawful ap pointment of an agent upon whom all notices and processes, including service of summons, may be served, and service made upon him shall be lawful personal service upon such corporation. The appointment of such agent must be embodied in a resolution duly adopted by the company and must be signed by the president, manager, or secretary thereof. Such agent must be a bona fide resident of the county in which his appointment is filed. Corporations are prohibited from doing any business in this Territory before complying with the above provisions.

Courts, Jurisdiction and Terms of. See Court Calendar for Arizona.

Deeds. Every conveyance, whereby real estate, including mines and mining claims, is conveyed or affected, shall be acknowledged or proved and certified (1) in this Territory, before the clerk of a court having a seal, a notary public, or a justice of the peace in the county where the real estate is situate; (2) without the Territory but within the United States, before a clerk of court of record having a seal, a commissioner of deeds duly ap pointed under the laws of this Territory, or a notary public; (3) without the United States, before either a minister, commissioner, or chargé d'affaires of the United States resident and accredited in the country where the proof or acknowledgment is made, a consul-general,

consul, vice-consul, commercial agent, vice-commercial agent, deputy consul, or consular agent of the United States resident in the country where the proof or acknowledgment is made, or a notary public. And a certificate of a United States consul certifying the official character of such notary is not necessary.

STATE OF COUNTY OF Before me appeared

88.

[Form of Acknowledgment.]

(here insert name and character of the officer), on this day, personally known to me (or proved to me on the oath of to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this

[Seal.]

STATE OF

day of A. D. 18. [Form of Acknowledgment of a Married Woman.]

(Signature and title.)

$8.

COUNTY OF

wife of

Before me (here insert the name and character of the officer), on this day, personally appeared known to me (or proved to me on oath of ) to be the person whose name is subscribed to the foregoing instrument, and having been examined by me privily and apart from her husband, and having the same fully explained to her, she, the said acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it.

Given under my hand and seal of office this [Seal.]

A scroll will not do for a seal.

day of A. D. 18.

(Signature and title.)

Depositions.- Depositions of witnesses may be taken (1) when witness is a female; (2) when by reason of age, infirmity, sickness, or official duty, it is probable that the witness will be unable to attend court; (3) when the witness resides without the Territory or county in which the suit is pending, or more than fifty miles from the place of trial; (4) when the witness has left or is about to leave the Territory or the county in which the suit is pending and will not probably be present at the trial; (5) when the party desires to perpetuate the testimony of a witness.

A party wishing to take the deposition of a witness in a suit pending in court shall file with the clerk or justice of the peace a notice of his intention to apply for a commission to take the answers of a witness to interrogatories attached to such notice, stating in the notice the name and residence of the witness or the place where he is to be found and the suit in which the deposition is to be used, and a copy thereof and of the attached interrogatories shall be served upon the adverse party or his attorney five days before the issuance of the commission, who shall have the right to file and serve cross-interrogatories.

The commission shall be addressed to the following officers, either of whom may execute and return the same. See officers mentioned under Acknowledgments.

Descent and Distribution of Property. Where any person shall die intestate and leave no surviving husband or wife his estate shall descend and pass in parcenary to his kindred, male and female, in the following course: (1.) To his children and their descendants. (2.) If there be no children nor their descendants, then to his father and mother in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother. (3.) If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate and to their descendants. (4.) If there be none of the kindred aforesaid, then the estate shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred; that is to say: to the grandfather and grandmother in equal portions; but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to the survivor and the other to the descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.

Where any person shall die intestate, and shall leave a surviving husband or wife, the estate shall descend and pass: (1.) If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one third of the personal estate, and the balance of the personal estate shall go to the child or children of deceased, and their descendants. The surviving husband or wife shall also be entitled to an estate for life in one third of the land of the intestate, with remainder to the child or children of intestate and their descendants. (2.) If deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate and to one half of the lands of the intestate without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased have neither surviving father or mother, then the surviving husband or wife shall be entitled to the whole of the estate.