21

Case of

claims not

$12. The court shall examine all the claims that shall be presented, and shall ascertain and determine the amount due to each yet payable. creditor, who has a lien of the kind before mentioned, upon the estate in question; and every such claim that is due absolutely and without any condition, although not then payable, shall be allowed with a rebate of interest to the time when it would become payable.

part

$13. When the owner of the land shall have failed to perform his Case of a part of the contract, and by reason thereof, the other party shall, formance of without his own default, have been prevented from completely per- contract. forming his part, he shall be entitled to a reasonable compensation for as much thereof, as he has performed in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly.

mises when

S14. If the lien should be established in favor of any of the credi- Sale of pretors whose claims are presented, whether the petitioning creditor or ordered. any other, the court shall order a sale to be made of the premises by any officer who is authorized to serve any civil process between the same parties.

tain cases.

$15. If any part of the premises can be separated from the residue, Part may be and sold without damage to the whole, and if the value thereof should cient in cerbe sufficient to satisfy all the debts proved in the case, the court may order a sale of that part, if it shall appear to be most for the interest of all the parties concerned.

sale.

16. The officer who makes the sale shall give notice of the time Notice of and place appointed therefor, in the manner prescribed in relation to the sale of mortgaged lands, unless the court shall order other or different notice to be given.

demption.

$ 17. All lands sold under such order of the court, may be re- Right of redeemed in like manner and upon the same terms as are provided in the case of a sale by advertisement of the right of redeeming mortgaged lands.

of proceeds,

$ 18. If the claims against the estate are all ascertained at the Distribution time of ordering the sale, the court may at the same time order the how made. officer to pay over and distribute the proceeds of the sale, after deducting all lawful charges and expenses, to and among the several creditors to the amount of their respective debts, if there is sufficient therefor, and if there is not sufficient, then to divide and distribute the same among the creditors in proportion to the amount due to each of them.

19. If the claims are not all ascertained when the sale is ordered, Ib. or if for any other reason the court should find it necessary or proper to postpone the order of distribution, they may direct the officer to bring the proceeds of the sale into court, there to be disposed of according to the decree of the court; and if by reason of the claims of attaching creditors, or for any other cause, the whole cannot be conveniently distributed at once, the court may make two or more successive orders of distribution as the circumstances may require.

how dispo.

$20. If there be any surplus of the proceeds of the sale after mak- Surplus, ing all the payments before mentioned, it shall be forthwith paid over sed. to the owner of the land; but such surplus, before it is so paid over, shall be liable to be attached or taken in execution, in like manner, as if it proceeded from a sale made by the officer on an execution.

Case of a

prior attach

premies.

$21. If the land to which any such contract relates shall be under ment of the attachment at the time of recording the contract, the attaching creditor shall be preferred to the extent of the value of the land and buildings as they may be when the contract shall be recorded, and the court shall ascertain by a jury or otherwise as the case may require, what proportion of the proceeds of the sale shall be held subject to the attachment, as derived from the value of the premises when the contract was recorded.

Ib.

Case of a subsequent

S22. If the attaching creditor in such case shall recover judgment in his suit, he shall be entitled to receive on his execution the said proportion of the proceeds that are held subject to his attachment, or as much thereof as may be necessary to satisfy his execution, and the residue, if any, of the proceeds of the sale, shall be applied in the same manner as if there had been no such attachment.

S 23. If the land to which the contract relates shall be attached attachment. after the recording of the contract, the proceeds shall be applied after discharging all prior liens and claims, to satisfy the execution of such attaching creditor.

Case of an $24. If any attachment is made after the recording of such a intervening attachment. Contract, and if after the attachment another like contract should be recorded, the creditor in the latter contract shall be entitled to be paid only out of the residue of the proceeds, if any remaining after satisfying the attaching creditor, and also paying all that is due on the contracts that were recorded before the attachment.

Rights of reditors, &c.

selves.

$25. When there are several attaching creditors, they shall, as spective ce between themselves, be entitled to be paid according to the order of among them their respective attachments; but when several creditors who are entitled to the lien provided for in this act, have all equal rights as between themselves, and the fund shall be insufficient to pay the whole, they shall share it equally in proportion to their respective debts.

Case of a debtor having estate

S26. If the person who procures the work to be done has an estate for life only, or any other estate less than a fee simple in the land on which the work is to be done, or if the land at the time of recording fee simple. the contract is mortgaged or under any other incumbrance, the person

less than a

Lien may be enforced against

heirs and assigns.

And by executors, &c.

who procures the work to be done shall nevertheless be considered as the owner for the purposes of this act, to the extent of his right and interest in the land, and the lien before provided for shall bind his whole estate and interest therein in like manner as a mortgage would have done, and the creditor may cause the right of redemption, or whatever other right or estate the owner had in the land, to be sold and applied to the discharge of his debt according to the provisions of this act.

$27. If the person indebted in any such contract shall die or convey away his estate before the commencement of a suit on the contract, the suit may be commenced and prosecuted against his heirs, or whoever shall hold the estate which he had in the premises at the time of making the contract; or if a suit is commenced in his life time, it may be prosecuted after his death against his heirs or assigns, in like man ner as if the estate had been mortgaged to secure the debt.

$28. If the creditor in such contract shall die before the commencement of a suit thereon, the suit may be commenced and prosecuted by his executors or administrators, or if commenced in his life

time it may be prosecuted by them as it might have been by the deceased if living.

menced by

another,

$29. If it appear in any stage of the proceedings under this act suits comthat the suit was commenced by the petitioning creditor before the one may be expiration of sixty days, or after the expiration of six months, as be- prosecuted fore limited, or if the petitioning creditor should become nonsuit, or should from any cause fail to establish his claim, the suit may nevertheless be prosecuted by any other creditor having such a lien, in the same manner as if it had been originally commenced by the latter creditor, provided the circumstances of the case are such that he might then or at any time after the commencement of the original suit, have commenced a like suit on his own claim.

commenced

$30. If the suit is commenced by the petitioning creditor before Case of suits the expiration of sixty days, as before limited, his claim may never-prematurely theless be allowed, if he is otherwise entitled thereto, and if the suit &c. is carried on by any other creditor, as provided in the preceding section; but he shall not in such case be entitled to any costs, and he may be required to pay the costs that shall be incurred by the debtor, or any part thereof, as the court shall think reasonable.

paid.

$31. The costs in all other respects, shall be subject to the discre- Costs, how tion of the court, and shall be paid out of the proceeds of the sale, or by any of the parties of the suit, as justice and equity may require.

to bar action

$32. Nothing contained in this act shall be construed to prevent This act not any creditor in such contract from maintaining an action thereon at at law. the common law, in like manner as if he had no such lien for the security of his debt.

record con

tracts.

$33. The register of deeds shall receive and record all contracts Register to of the kind mentioned in this act, that shall be delivered to him for that purpose, and he shall be entitled to the same fees therefor as for recording deeds or other papers of equal length.

how to dis

$34. When any debt secured by such lien shall be fully paid, Creditor, the creditor shall at the expense of the debtor, enter on the margin charge lien. of the registry where the contract is recorded, a discharge of his said lien, or shall execute a deed of release thereof, in like manner as is provided in relation to the release of mortgages after the payment thereof; and if such creditor, having received satisfaction as aforesaid, shall not within six days after request made by the debtor, execute by himself or his attorney duly authorized, a deed of release, as aforesaid, he shall forfeit and pay to the aggrieved party any sum not exceeding one half the debt secured by such lien, to be recovered by such aggrieved party in an action of debt.

AN ACT to restrain unauthorized banking, and for

other purposes.

ted company

without

S1. No incorporated company, without being authorized by law, Incorporashall be in any manner concerned in receiving deposites, making not to issue discounts, or issuing notes or other evidences of debt, to be loaned or notes, &c. put into circulation as money; and any director or other agent or authority. officer of any incorporated company, who shall violate any provision Penalty. of this section, shall forfeit one thousand dollars.

Issuing bills

as money.

$ 2. No person or association of persons, or body corporate, except to circulate such bodies corporate as are expressly authorized by law, shall issue any bills or promissory notes or other evidences of debt, for the purpose of loaning them, or putting them in circulation as money, unless thereto especially authorized by law; and every person and every corporation, and every member of a corporation, who shall violate either of the provisions of this section, shall forfeit one thousand dollars.

Notes, &c. given for

void.

3. All notes and other securities for the payment of any money, such bills, or the delivery of any property, of which the consideration, or any part of the consideration, was any such bill, note, or other evidence of debt, mentioned in either of the preceding sections of this act, shall be void.

Bills, notes, &c. for less than one

bited.

S4. No person shall pay, give or receive in payment, or in any way circulate or attempt to circulate, any bank bill or promissory note, dollar prohi check, draft or other evidence of debt, which shall purport to be for the payment of a less sum than one dollar, or payable otherwise than in the lawful money of the United States; and any person who shall wilfully violate any of the provisions of this section, shall forfeit one hundred dollars.

Penalties, how reco. vered.

Court to charge grand jury.

General powers of corporations

Time allowed corpora.

cerns.

$5. The penalties prescribed in this act shall be recovered in suits in the name of the county commissioners of the county in which the offence is committed, to be prosecuted by the district attorneys of said counties respectively; and the same shall be paid into the county treasury.

the

$6. It shall be the duty of the court to give this act in charge to grand jury at each term of the district court.

AN ACT concerning corporations.

$1. All corporations shall, when no other provision is specially made, be capable, in their corporate name, to sue and be sued, appear, prosecute and defend, to final judgment and execution, in any courts or elsewhere; to elect in such manner as they shall deem proper, all necessary officers, and to make by-laws and regulations not inconsistent with the laws of the territory, or the United States, for their own government, and for the orderly conducting of their affairs and the management of their property. No charter for any corporation shall be construed as giving any other powers or privileges than such as are necessarily implied, or fully expressed, in such charter.

S2. All corporations whose charters shall expire by their own tions to close limitation, or shall be annulled by forfeiture or otherwise, shall nevertheir con- theless be continued bodies corporate for the term of three years after such limitation or dissolution, for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey their property, and to divide their capital stock; but not for the purpose of continuing the business for which such corporations have been, or may be established.

When cor.

porations

receivers to

S3. When the charter of any corporation shall expire or be anexpire, &c. nulled, as provided in the preceding section, the district court of the be appointed county in which such corporation may be, on application of any creditor of such corporation, or of any stockholder or member thereof,

to settle affairs.

may appoint one or more persons to be receivers or trustees of and for such corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation, with power to prosecute and defend, in the name of the corporation or otherwise, all such suits as may be necessary or proper, for the purposes aforesaid; and to appoint an agent or agents under them, and to do all other acts which might be done by such corporation, if in being, that may be necessary for the final settlement of the unfinished business of the corporation; and the powers of such receivers may be continued beyond the said three years, and as long as the court shall think necessary for the purposes aforesaid.

$4. The said court shall have jurisdiction in chancery of such Equity jurisapplication, and of all questions arising in the proceedings thereon; to district and may make such orders, injunctions and decrees therein, as justice and equity may require.

court.

pay debts &c

and distri

bute surplus

$5. The said receivers shall pay all debts due from the corpora- Receivers to tion, if the funds in their hands shall be sufficient therefor, and if not, they shall distribute the same ratably among all the creditors, who shall prove their debts in the manner that shall be directed by any order or decree of the court for that purpose; and if there shall be any balance remaining after the payment of said debts, the receivers shall distribute and pay the same to and among those who shall be justly entitled thereto, as having been stockholders or members of the corporation, or their legal representatives.

&e. how

on execution

$6. The franchise of any turnpike or other corporation authorized Franchise, to receive toll, and all the rights and privileges thereof, shall be liable attached. to attachment on mesne process; and when such attachment or other service of mesne process, shall be made on any such corporation, the officer serving the same shall leave an attested copy of the process, and his return thereon, with the clerk, treasurer, or some one of the directors of the corporation, fourteen days at least before the day of the sitting of the court to which the same may be returnable. $7. When any judgment shall be recovered against any turnpike May be sold or other corporation authorized to receive toll, the franchise of such corporation, with all the rights and privileges thereof, so far as relates to the receiving of toll, and also all other corporate property, real and personal, may be taken on execution and sold at public auction. 58. The officer having' such execution against any corporation Mode of mentioned in the preceding section, shall, thirty days at least before chises, &c. the day of sale of any franchise or other corporate personal property, give notice of the time and place of sale, by posting up a notification thereof at the county seat of the county in which such corporation may be; and also by causing an advertisement of the sale, expressing the name of the creditor, the amount of the execution, and the time and place of sale, to be inserted three weeks successively, in some newspaper published in the county; and if no newspaper shall be published in the county, then notice shall be given in some newspaper published in the territory.

selling fran

adjourned.

$9. The officer who may levy any execution as prescribed in the Sale may be preceding section, may adjourn the sale for any time not exceeding seven days, until the sale shall be completed.

$10. In the sale of the franchise of any corporation, the person who consiwho shall satisfy the execution, with all legal fees and expenses est bidder.

dered high